ProtectMarriage.com v. Bowen

Justia.com Opinion Summary: Plaintiffs filed suit challenging California's Political Reform Act of 1974, Cal. Gov. Code 81000-91014 (PRA), which requires political committees to report certain information about their contributors to the State. Plaintiffs are political committees that supported the November 2008 passage of Proposition 8 and argued that their donors have been harassed as a result of the PRA disclosures. Plaintiffs sought an injunction exempting them from the PRA's future reporting deadlines and declaratory and injunctive relief requiring the State to purge all records of their past PRA disclosures. The district court granted summary judgment in favor of the State on all counts. The court held that Family PAC v. McKenna directly precluded plaintiffs' challenge to the $100 contribution threshold and the government's interest in disclosing contributions to ballot initiative committees is not merely a pre-election interest. Therefore, the court affirmed the district court's judgment with regard to plaintiffs' facial challenges to the post-election reporting requirements. In regard to plaintiffs' as-applied challenges, the court concluded that plaintiffs' request for an injunction does not present a live controversy where the information that plaintiffs seek to keep private has been publicly available on the Internet and in hard copy for nearly five years; plaintiffs' request for injunctive relief did not fall within the mootness exception for cases that are capable of repetition, yet evading review; and plaintiffs' claim for forward-looking relief is not ripe for judicial review. Accordingly, the court affirmed in part, dismissed in part, and remanded with instructions.

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Court Description:

Civil Rights. The panel affirmed in part the district court’s summary judgment and  dismissed in part the appeal as non-justiciable in an action challenging California’s Political Reform Act of 1974, which requires political committees to report certain information about their contributors to the State, specifically, semi-annual  disclosures  identifying  those  individuals  who have contributed more than $100 during or after a campaign, in  addition  to  each  contributor’s  address,  occupation    and employer. Appellants  are  political  committees  that  supported  the November 2008 passage of Proposition 8, which before it was invalidated, amended the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California.  Arguing that their donors have been harassed  as  a  result  of  Political  Reform  Act  disclosures, appellants  asserted that  the  Act’s  $100  reporting  threshold and  post-election  reporting  requirements  were  facially unconstitutional in the context of ballot initiatives. The panel held that Family PAC v. McKenna, 685 F.3d 800, 809–11 (9th Cir. 2012), directly precluded appellants’ challenge to the $100 threshold.  The panel further held that the government’s interest in disclosing contributions to ballot initiative committees was not merely a pre-election interest.  The  panel  therefore  affirmed  the  district  court’s  judgment     4 PROTECTMARRIAGE.COM V. BOWEN with  regard  to  appellants’  facial  challenges  to  the  post- election reporting requirements. The  panel  dismissed  the  appeal as  non-justiciable  with regard to appellants’ as-applied challenges.  The panel held that  to  the  extent  that  appellants  sought  an  injunction requiring the State to purge records of their past disclosures, any claim for such relief was moot given that the information has been publicly available on the Internet and in hard copy for nearly five years.  To the extent that appellants sought a forward-looking exemption from the Political Reform Act’s requirements, the panel held such claim was not ripe.  The panel remanded with instructions that the district court vacate the portion of its opinion concerning appellants’ as-applied challenges. Dissenting  in  part,  Judge  Wallace  disagreed  with  the majority’s  determination  that  appellants’  as-applied challenges were non-justiciable.

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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PROTECTMARRIAGE.COM - YES ON 8, A PROJECT OF CALIFORNIA RENEWAL; NATIONAL ORGANIZATION FOR MARRIAGE CALIFORNIA, Yes on 8, Sponsored by National Organization for Marriage; NATIONAL ORGANIZATION FOR MARRIAGE CALIFORNIA PAC; JOHN DOE #1, an individual, Plaintiffs-Appellants, v. DEBRA BOWEN; ROSS JOHNSON; CALIFORNIA SECRETARY OF STATE; KAMALA HARRIS, in her official capacity as Attorney General of the State of California; EUGENE HUGUENIN, JR.; LYNN MONTGOMERY; RONALD ROTUNDA; ANN MILLER RAVEL, in her official capacity as Chair of the Fair Political Practices Commission; SEAN ESKOVITZ, in his official capacity as Commissioner of the Fair Political Practices Commission; DEPARTMENT OF ELECTIONS CITY AND COUNTY OF SAN FRANCISCO; DENNIS J. HERRERA, City Attorney No. 11-17884 D.C. No. 2:09-cv-00058MCE-DAD OPINION 2 PROTECTMARRIAGE.COM V. BOWEN for the City and County of San Francisco; DEAN C. LOGAN; JAN SCULLY, Defendants-Appellees. Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., Chief District Judge, Presiding Argued and Submitted October 11, 2013âSan Francisco, California Filed May 20, 2014 Before: J. Clifford Wallace, Milan D. Smith, Jr. and Sandra S. Ikuta, Circuit Judges. Opinion by Judge Milan D. Smith, Jr.; Dissent by Judge Wallace PROTECTMARRIAGE.COM V. BOWEN 3 SUMMARY* Civil Rights The panel affirmed in part the district courtâs summary judgment and dismissed in part the appeal as non-justiciable in an action challenging Californiaâs Political Reform Act of 1974, which requires political committees to report certain information about their contributors to the State, specifically, semi-annual disclosures identifying those individuals who have contributed more than $100 during or after a campaign, in addition to each contributorâs address, occupation and employer. Appellants are political committees that supported the November 2008 passage of Proposition 8, which before it was invalidated, amended the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California. Arguing that their donors have been harassed as a result of Political Reform Act disclosures, appellants asserted that the Actâs $100 reporting threshold and post-election reporting requirements were facially unconstitutional in the context of ballot initiatives. The panel held that Family PAC v. McKenna, 685 F.3d 800, 809â11 (9th Cir. 2012), directly precluded appellantsâ challenge to the $100 threshold. The panel further held that the governmentâs interest in disclosing contributions to ballot initiative committees was not merely a pre-election interest. The panel therefore affirmed the district courtâs judgment * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 4 PROTECTMARRIAGE.COM V. BOWEN with regard to appellantsâ facial challenges to the postelection reporting requirements. The panel dismissed the appeal as non-justiciable with regard to appellantsâ as-applied challenges. The panel held that to the extent that appellants sought an injunction requiring the State to purge records of their past disclosures, any claim for such relief was moot given that the information has been publicly available on the Internet and in hard copy for nearly five years. To the extent that appellants sought a forward-looking exemption from the Political Reform Actâs requirements, the panel held such claim was not ripe. The panel remanded with instructions that the district court vacate the portion of its opinion concerning appellantsâ as-applied challenges. Dissenting in part, Judge Wallace disagreed with the majorityâs determination that appellantsâ as-applied challenges were non-justiciable. COUNSEL John C. Eastman (argued), Center for Constitutional Jurisprudence, Orange, California; James Bopp, Jr. (argued) and Richard E. Coleson, The Bopp Law Firm, Terre Haute, Indiana; Benjamin W. Bull, Alliance Defense Fund, Scottsdale, Arizona; David J. Hacker, Alliance Defense Fund, Folsom, California; Noel H. Johnson and Kaylan L. Phillips, ActRight Legal Foundation, Plainfield, Indiana, for PlaintiffsAppellants. Mollie M. Lee (argued), Dennis J. Herrera, Therese M. Stewart, and Jon Givner, Office of the City Attorney, San PROTECTMARRIAGE.COM V. BOWEN 5 Francisco, California; Zackery P. Morazzini (argued) and Jack Woodside, Fair Political Practices Commission, Sacramento, California; Kamala D. Harris, Tamar Pachter, and Daniel J. Powell, Office of the Attorney General, San Francisco, California; Terence J. Cassidy and Kristina M. Hall, Porter Scott, Sacramento California, for DefendantsAppellees. Trevor Potter, J. Gerald Hebert, Paul S. Ryan, and Megan McAllen, The Campaign Legal Center, Washington, D.C., for Amicus Curiae The Campaign Legal Center. 6 PROTECTMARRIAGE.COM V. BOWEN OPINION M. SMITH, Circuit Judge: Appellants bring facial and as-applied challenges to Californiaâs Political Reform Act of 1974, Cal. Gov. Code. §§ 81000â91014 (PRA), and seek (1) an injunction exempting them from the PRAâs future reporting deadlines, and (2) declaratory and injunctive relief requiring the State to purge all records of Appellantsâ past PRA disclosures. The district court granted summary judgment in favor of the State of California on all counts. We affirm the district courtâs judgment with regard to Appellantsâ facial challenges. We dismiss this appeal as non-justiciable with regard to Appellantsâ as-applied challenges. And, we remand with instructions that the district court vacate the portion of its opinion concerning Appellantsâ as-applied challenges. FACTUAL AND PROCEDURAL BACKGROUND The PRA requires political committees to report certain information about their contributors to the State. Specifically, political committees must file semi-annual disclosures, which, among other things, identify those individuals who have contributed more than $100 during or after a campaign, in addition to each contributorâs address, occupation, and employer. Cal. Gov. Code §§ 84200, 84211(f). The State of California then publishes this information on the website of the California Secretary of State (the Secretary), and produces hard copies upon request. Appellants, to whom we refer as the Prop 8 Committees or the Committees, are political committees that supported the November 2008 passage of Proposition 8. That PROTECTMARRIAGE.COM V. BOWEN 7 proposition amended the California Constitution to provide that â[o]nly marriage between a man and a woman is valid or recognized in California.â Cal. Const., Art. I, § 7.5. Proposition 8 was subsequently invalidated. See Hollingsworth v. Perry, 133 S. Ct. 2652, 2660 (2013) (citing Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1004 (N.D. Cal. 2010)). Prior to Proposition 8âs passage, the Prop 8 Committees submitted disclosures to comply with the PRAâs semi-annual reporting deadlines. These disclosures were published on the Secretaryâs website, and are available in hard copy. Following Proposition 8âs passage, the Committees initiated this action in the United States District Court for the Eastern District of California, challenging the constitutionality of the PRAâs disclosure requirements both facially and as applied to them. The Committees argued that their donors have been harassed as a result of the Committeesâ PRA disclosures, and they sought (1) an injunction exempting them from the PRAâs future reporting deadlines, and (2) declaratory and injunctive relief requiring the State to purge all records of their past PRA disclosures. On January 30, 2009, the district court denied Appellantsâ motion for a preliminary injunction. Appellants did not appeal the district courtâs order under 28 U.S.C. § 1292(a). Instead, they complied with the PRAâs January 31, 2009 disclosure deadline, reporting those contributors who donated after October 19, 2008 and before December 31, 2008. The Secretary published these disclosures on her website, and made them publicly available in hard copy.1 On November 4, 1 Appellant âNational Organization for Marriage California PACâ was subsequently formed, and joined in Plaintiffsâ Third Amended Complaint. 8 PROTECTMARRIAGE.COM V. BOWEN 2011, the district court granted summary judgment in favor of the State on all counts. Appellants timely appealed, asking us to reverse the judgment of the district court and to order the State to purge all records of Appellantsâ PRA disclosures. We have jurisdiction under 28 U.S.C. § 1291. We review a district courtâs grant of summary judgment de novo. Bias v. Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007). We review questions of justiciability de novo. Bell v. City of Boise, 709 F.3d 890, 896 (9th Cir. 2013). DISCUSSION I. Facial Challenges Appellants assert that the PRAâs $100 reporting threshold and âpost-election reporting requirementsâ are facially unconstitutional in the context of ballot initiatives. Our decision in Family PAC v. McKenna directly precludes Appellantsâ challenge to the $100 threshold. 685 F.3d 800, 809â11 (9th Cir. 2012) (holding that $25 and $100 contribution disclosure thresholds survive âexacting scrutinyâ in the context of ballot initiatives). Appellantsâ facial challenge to the post-election reporting requirements fails as well. A. Legal Standard Contribution disclosure requirements are subject to âexacting scrutiny.â Citizens United v. FEC, 558 U.S. 310, 366â67 (2010); Buckley v. Valeo, 424 U.S. 1, 44 (1976). In applying exacting scrutiny, we first ask whether the challenged regulation burdens First Amendment rights. If it does, we then assess whether there is a âsubstantial relationâ PROTECTMARRIAGE.COM V. BOWEN 9 between the burden imposed by the regulation and a âsufficiently importantâ governmental interest. Citizens United, 558 U.S. at 366â67; Family PAC, 685 F.3d at 805â06 (citing Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1005 (9th Cir. 2010)). Although disclosure is generally âa less restrictive alternative to more comprehensive regulations of speech,â Citizens United, 558 U.S. at 369, contribution disclosure requirements may burden First Amendment rights by, among other things, deterring âindividuals who would prefer to remain anonymous from contributing,â Family PAC, 685 F.3d at 806â07 (internal quotation marks omitted). To justify these burdens and to survive exacting scrutiny, âthe strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.â Doe No. 1 v. Reed, 561 U.S. 186, 130 S. Ct. 2811, 2818 (2010) (internal quotation marks omitted). The Supreme Court recognizes three substantial government interests that campaign contribution disclosure requirements may serve. Buckley, 424 U.S. at 66â68; see also Doe, 130 S. Ct. at 2819â21. First, disclosure requirements may serve a substantial âinformational interestâ by providing the electorate with information about the source of campaign money, the individuals and interests seeking their vote, and where a particular ballot measure or candidate falls on the political spectrum. Buckley, 424 U.S. at 66â67; Family PAC, 685 F.3d at 806. This interest is particularly important in the ballot initiative context. As we explained in Family PAC: The governmental interest in informing the electorate about who is financing ballot measure committees is of great importance. 10 PROTECTMARRIAGE.COM V. BOWEN Disclosure enables the electorate to give proper weight to different speakers and messages . . . by providing the voting public with the information with which to assess the various messages vying for their attention in the marketplace of ideas . . . . Given the complexity of the issues and the unwillingness of much of the electorate to independently study the propriety of individual ballot measures, we think being able to evaluate who is doing the talking is of great importance . . . . Disclosure also gives voters insight into the actual policy ramifications of a ballot measure. Knowing which interested parties back or oppose a ballot measure is critical, especially when one considers that ballotmeasure language is typically confusing, and the long-term policy ramifications of the ballot measure are often unknown. Family PAC, 685 F.3d at 808â09 (internal quotation marks and citations omitted); see also Human Life of Wash. Inc., 624 F.3d at 1006 (â[T]he high stakes of the ballot context only amplify the crucial need to inform the electorate . . . .â). Disclosure requirements may also help preserve the integrity of the electoral process by deterring corruption and the appearance of corruption. Doe, 130 S. Ct. at 2819; Buckley, 424 U.S. at 67 (explaining that disclosure requirements deter âthose who would use money for improper purposes either before or after the electionâ). This interest extends generally to âpromoting transparency and accountability in the electoral process,â and those states that allow ballot initiatives âhave considerable leeway to protect PROTECTMARRIAGE.COM V. BOWEN 11 the integrity and reliability of the initiative process.â Doe, 130 S. Ct. at 2819 (citations and quotations omitted). Finally, disclosure requirements may permit accurate record-keeping. â[D]isclosure requirements are an essential means of gathering the data necessary to detect violations of . . . contribution limitations.â Buckley, 424 U.S. at 68. Such records further enhance the publicâs future associational rights by offering voters information about which policies those seeking their vote have previously endorsed. Both the Supreme Court and our court have rejected facial challenges to contribution disclosure requirements in several cases, holding that these substantial interests outweigh the modest burdens that the challenged disclosures impose on First Amendment rights. See, e.g., Doe, 130 S. Ct. at 2820 (holding that a state law authorizing private parties to obtain copies of referendum petitions is âsubstantially related to the important interest of preserving the integrity of the electoral processâ); Family PAC, 685 F.3d at 805â11; Human Life of Wash. Inc., 624 F.3d at 1013â14; Alaska Right To Life Comm. v. Miles, 441 F.3d 773, 791â92 (9th Cir. 2006). B. Application The PRA imposes reporting requirements on ballot committees, which require them to disclose the names of, and other identifying information about, contributors who donate $100 or more. The PRAâs reporting deadlines are semiannual. Accordingly, donations that are made prior to an election, but after the final pre-election reporting deadline, are reported after the election concludes. Appellants argue that this requirement is unconstitutional, because a stateâs only interest in disclosure is its interest in an informed 12 PROTECTMARRIAGE.COM V. BOWEN electorate, and this interest allegedly expires with the electionâs conclusion. We reject Appellantsâ narrow view of the governmentâs interest in disclosure. A stateâs interests in contribution disclosure do not necessarily end on election day. Even if a stateâs interest in disseminating accurate information to voters is lessened after the election takes place, the state retains its interests in accurate record-keeping, deterring fraud, and enforcing contribution limits. As a practical matter, some lag time between an election and disclosure of contributions that immediately precede that election is necessary for the state to protect these interests. In this case, for example, Appellantsâ contributions surged nearly 40% (i.e., by over $12 million) between the final pre-election reporting deadline and election day. Absent post-election reporting requirements, California could not account for such late-in-the-day donations. And, without such reporting requirements, donors could undermine the Stateâs interests in disclosure by donating only once the final pre-election reporting deadline has passed. Accordingly, we hold that the governmentâs interest in disclosing contributions to ballot initiative committees is not merely a pre-election interest, and we affirm the district courtâs judgment with regard to Appellantsâ facial challenges. II. As-Applied Challenges Appellants also challenge the requirements as applied to themselves. PRA disclosure To the extent that Appellants seek an injunction requiring the State to purge records of their past PRA disclosures, any claim for such relief is moot. To the extent that Appellants seek a forward-looking exemption from Californiaâs PRA PROTECTMARRIAGE.COM V. BOWEN 13 requirements, such a claim is not ripe. Accordingly, we dismiss as non-justiciable Appellantsâ appeal from the district courtâs judgment rejecting their as-applied claims, and we direct the court to vacate this portion of its opinion. A. Mootness Article IIIâs âcase-or-controversyâ requirement precludes federal courts from deciding âquestions that cannot affect the rights of litigants in the case before them.â DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (per curiam) (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971)). 1. Present Controversy a. Legal Standard It is not enough that a case presents a live controversy when it is filed. FEC v. Wisc. Right To Life, Inc., 551 U.S. 449, 461 (2007). An actual controversy must exist at all stages of federal court proceedings. Spencer v. Kemna, 523 U.S. 1, 7 (1998). This means that, at all stages of the litigation, the plaintiff âmust have suffered, or be threatened with, an actual injury traceable to the defendant [that is] likely to be redressed by a favorable judicial decision.â Id. (quoting Lewis v. Contâl Bank Corp., 494 U.S. 472, 477 (1990)). â[T]he judicial branch loses its power to render a decision on the merits of [a] claim,â Nome Eskimo Cmty. v. Babbitt, 67 F.3d 813, 815 (9th Cir. 1995), when a federal court can no longer effectively remedy a âpresent controversyâ between the parties, Doe, 697 F.3d at 1238 (quoting Feldman v. Bomar, 518 F.3d 637, 642 (9th Cir. 2008)). 14 PROTECTMARRIAGE.COM V. BOWEN We are unable to effectively remedy a present controversy between the parties where a plaintiff seeks to enjoin an activity that has already occurred, and we cannot âundoâ that actionâs allegedly harmful effects. Foster v. Carson, 347 F.3d 742, 746 (9th Cir. 2003) (citing Bernhardt v. Cnty. of Los Angeles, 279 F.3d 862, 871 (9th Cir. 2002)); see also Seven Words LLC v. Network Solutions, 260 F.3d 1089, 1095 (9th Cir. 2001). For example, âonce a fact is widely available to the public, a court cannot grant âeffective reliefâ to a person seeking to keep that fact a secret.â Doe, 697 F.3d at 1240; see also Islamic Shura Council of S. Cal. v. FBI, 635 F.3d 1160, 1164 (9th Cir. 2011); In re Copley Press, Inc., 518 F.3d 1022, 1025 (9th Cir. 2008) (âOnce information is published, it cannot be made secret again.â). For this reason, âa case seeking to keep a document secret is moot once third parties have control over copies of the document.â Doe, 697 F.3d at 1239 (quoting C & C Prods., Inc. v. Messick, 700 F.2d 635, 636â37 (11th Cir. 1983)). A case is similarly moot where a plaintiff seeks to enjoin specific parties from disclosing information that has already been published across the Internet. Doe, 697 F.3d at 1240. b. Application Appellantsâ request for an injunction requiring the State to purge all records of their PRA disclosures does not present a live controversy. Before commencing this lawsuit, Appellants voluntarily complied with all PRA reporting requirements, and they have continued to do so throughout this litigation. Appellants most recently filed PRA disclosures on January 17, 2014âmore than two years after filing this appeal. Each PRA disclosure PROTECTMARRIAGE.COM V. BOWEN 15 that Appellants have submitted is published on the Secretaryâs website, and is publicly available in hard copy.2 The record is replete with evidence that Appellantsâ PRA disclosures have been accessed and republished by third parties. Appellants themselves provided detailed documentation of several websites that have published their contributorsâ names, employers, and addresses. Appellants also represent that: (1) one site allows individuals to search for âany city and print a map graphically illustrating the name, address, [contribution] amount, occupation, and employer of each individual in that city who contributed to Prop. 8â; (2) âat least two major California newspapers have compiled searchable databases . . . that enable easy access to look up Prop. 8 contributorsâ; and (3) Time Magazine directed its readership to a website that publishes the information contained in Appellantsâ PRA disclosures. In light of the disclosures, and their vast dissemination, we can no longer provide Appellants with effective relief. The information that Appellants seek to keep private has been 2 Specifically, since the PRAâs January 31, 2009 reporting deadline, âProtectMarriage.com - Yes on 8, a Project of California Renewalâ has made seven additional filings. There was no committee activity between January 2009 and June 2011, but filings were made in June 2011, July 2011, January 2012, July 2012, January 2013, and July 2013. âNational Organization for Marriage California - Yes on 8, Sponsored by National Organization for Marriageâ has made two filings since the January 2009 deadline, in July 2009 and January 2010. There has been no committee activity since January 2010. Finally, âNational Organization for Marriage California PACâ was formed subsequent to the November 2008 election, and joined in Plaintiffsâ Third Amended Complaint. It has only made one filing, in July 2010, and its only donor was the National Organization for Marriage. In each instance, the information filed with the Secretary of State was posted on the Internet, and was and is available in hard copy. 16 PROTECTMARRIAGE.COM V. BOWEN publicly available on the Internet and in hard copy for nearly five years. Third parties already have control over this information. Moreover, we have no way of knowing how many individuals have: (1) viewed Appellantsâ PRA disclosures; (2) retained copies of the disclosures or their contents; or (3) reproduced the disclosures. Accordingly, we cannot remedy Appellantsâ alleged harms, and their request for an injunction requiring the State to purge their past PRA disclosures does not present a live controversy.3 3 Our dissenting colleague does not dispute that our precedent compels this conclusion. Rather, Judge Wallace argues that Doe was wrongly decided in light of Church of Scientology of California v. United States, 506 U.S. 9 (1992). In Church of Scientology, the Supreme Court held that the improper disclosure of privileged audio tapes to the IRS did not moot a claim to destroy or return those tapes. Id. at 13. But Church of Scientology involved a finite set of tangible records that had only been disclosed to a party to the action. Accordingly, the Court was able to clearly identify each person who had viewed the information, and order that each copy be returned or purged. Conversely, in this case, as in Doe, the challenged information is in the hands of third parties over whom we lack jurisdiction, and it has been widely available on the Internet for several years. It is now impossible to identify how many people have viewed this information, locate every reproduction of this information, and prevent the informationâs continued disclosure. As in Doe, the widespread disclosure of Appellantsâ PRA disclosures precludes us from providing the âeffective reliefâ that the Supreme Court recognized in Church of Scientology. We also observe that even if Judge Wallace were correct that Doe was wrongly decided, we would still be bound by Doeâs holding unless and until the Supreme Court announces a âclearly irreconcilableâ rule, or our court, sitting en banc, announces an alternate rule. Miller v. Gammie, 335 F.3d 889, 900 (2003) (en banc). As noted, Church of Scientology is not âclearly irreconcilableâ with Doe. PROTECTMARRIAGE.COM V. BOWEN 17 2. Capable of Repetition, Yet Evading Review We further hold that Appellantsâ request for injunctive relief does not fall within the mootness exception for cases that are âcapable of repetition, yet evading review.â a. Legal Standard As we explain above, a federal court loses its jurisdiction to reach the merits of a claim when the court can no longer effectively remedy a present controversy between the parties. Doe, 697 F.3d at 1238 (quoting Feldman, 518 F.3d at 642); Nome Eskimo Cmty., 67 F.3d at 815. There is an exception to this rule, however, where an otherwise moot action is âcapable of repetition, yet evading review.â Lewis, 494 U.S. at 481. Under the âcapable of repetition, yet evading reviewâ exception, we will decline to dismiss an otherwise moot action if we find that: â(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.â Wisc. Right to Life, Inc., 551 U.S. at 462 (internal quotation marks omitted). For a controversy to be âtoo short to be fully litigated prior to cessation or expiration,â it must be of âinherently limited duration.â Doe, 697 F.3d at 1240 (emphasis added). This is so because the âcapable of repetition, yet evading reviewâ exception is concerned not with particular lawsuits, but with classes of cases that, absent an exception, would always evade judicial review. Id. at 1240â41; see also Bunker Ltd. Pâship v. United States (In re Bunker Ltd. Pâship), 820 F.2d 308, 311 (9th Cir. 1987) (â[t]he exception was designed to apply to situations where the type of injury 18 PROTECTMARRIAGE.COM V. BOWEN involved inherently precludes judicial reviewâ); 13C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedures: Jurisdiction and Related Matters § 3533.8.2 (3d ed. 2013) (collecting cases). Notably, regardless of any injunction that might issue, a woman can only obtain an abortion so long as she remains pregnant. Roe v. Wade, 410 U.S. 113, 125 (1973). We can only invalidate a temporary injunction so long as that injunction remains in effect. Carroll v. President & Commârs of Princess Anne, 393 U.S. 175, 178â79 (1968); Enyart v. Natâl Conference of Bar Examârs, Inc., 630 F.3d 1153, 1159â60 (9th Cir. 2011). And where a purportedly invalid law inhibits a political candidate or partyâs ability to win an election, we can only remedy that impediment before the election occurs. Norman v. Reed, 502 U.S. 279, 288â89 (1992). We recognize these types of controversies as âinherently limited in duration,â because they will only ever present a live action until a particular date, after which the alleged injury will either cease or no longer be redressible. The limited duration of such controversies is clear at the actionâs inception. Actions seeking to enjoin future conduct are different. Such actions only become moot if the challenged conduct actually occurs and causes an injury that cannot be reversed. These actions are not of âinherently limited duration,â because the challenged conduct might never occur. And, a court can ensure that a live controversy persists until the action is fully litigated by enjoining the challenged conduct until the litigation concludes. See Doe, 697 F.3d at 1240â41. Because mootness concerns whether we have power to hear a case, we apply the âcapable of repetition, yet evading reviewâ exception sparingly, and only in âexceptional situations.â Lewis, 494 U.S. at 481. Controversies that are not PROTECTMARRIAGE.COM V. BOWEN 19 of âinherently limited durationâ do not create âexceptional situationsâ justifying the ruleâs application, because, even if a particular controversy evades review, there is no risk that future repetitions of the controversy will necessarily evade review as well. As we have explained, â[t]he exception was designed to apply to situations where the type of injury involved inherently precludes judicial review, not to situations where . . . [review is precluded as a] practical matter.â Bunker, 820 F.2d at 311. For this reason, where preliminary injunctive relief is available to maintain a live controversy, it is of no consequence to the mootness inquiry that a particular party has failed to actually obtain such relief. â[A] party may not profit from the âcapable of repetition, yet evading reviewâ exception . . . where through his own failure to seek and obtain [prompt relief] he has prevented [an] appellate court from reviewing the trial courtâs decision.â Id. at 311; see also Newdow v. Roberts, 603 F.3d 1002, 1008â09 (D.C. Cir. 2010). In such circumstances, we have no power to hear the action, and the controversy must be resolved in a future action presenting a live dispute. Doe, 697 F.3d at 1241; see also Headwaters, Inc. v. Bureau of Land Mgmt., 893 F.2d 1012, 1016 (9th Cir. 1990) (holding that a party may not invoke the âcapable of repetition, yet evading reviewâ exception where its failure to obtain prompt relief has prevented judicial review); Bunker, 820 F.2d at 311. Lawsuits seeking to enjoin the disclosure of sensitive information do not fall into the mootness exception for cases that are âcapable of repetition, yet evading review,â because there is no inherent limit on the duration of such controversies. For example, in a case challenging campaign contribution disclosure requirements, the court can maintain 20 PROTECTMARRIAGE.COM V. BOWEN a live controversy by issuing an order that either: (1) temporarily excuses the plaintiffs from complying with the challenged requirements; or (2) temporarily precludes the state from disclosing the challenged information. Doe, 697 F.3d at 1240â41. Whether a party actually obtains such an order in a particular case does not affect our jurisdictional inquiry. See id. b. Application The âcapable of repetition, yet evading reviewâ exception does not apply to Appellantsâ claims, because there was no âinherent limitâ on the duration of this controversy. A court order temporarily excusing Appellants from the PRAâs reporting deadline or enjoining the state from publicly disclosing Appellantsâ filings could have permitted the parties to fully litigate this case on the merits. Appellants simply failed to obtain such an order. After the district court denied Appellantsâ motion for a temporary restraining order, Appellants did not file an interlocutory appeal, nor did they seek an injunction pending appeal. By the time Appellantsâ claims reached us, the information that Appellants seek to keep private had been publicly available for nearly five years. If Appellants were to bring a similar action in the future, their claims would not, by their nature, again evade review, because a different litigation strategy could maintain a live controversy until the actionâs final resolution.4 4 In concluding that this controversy is justiciable, the dissent argues that under Enyart, the âcapable of repetition, yet evading reviewâ exception considers whether the circumstances of a particular litigation allowed a party to fully litigate its claims before they became moot. But Enyart dealt PROTECTMARRIAGE.COM V. BOWEN 21 In reaching this conclusion, we emphasize that the justiciability of disputes concerning the disclosure of with an issue of an entirely different nature. It is well established that when a party challenges a temporary injunction and that party will likely face a similar injunction in the future, the injury caused by that injunction is âcapable of repetition, yet evading review.â Carroll, 393 U.S. at 178â79. This is so because any injury caused by a temporary injunction ends when the injunction expires, and no court order can extend the duration of the controversy past the injunctionâs expiration. Enyart involved a straightforward application of this rule. We merely held that a challenge to a temporary injunction remained justiciable after the injunction expired because there was a reasonable expectation that the appellants would be subject to the same injunction in the future. 630 F.3d at 1159â60. The dissent reasons that, because we considered the duration of the challenged injunctions in Enyart, we should consider this litigationâs timeline in assessing whether Appellantsâ claims âevade review.â In so doing, the dissent highlights that there was only one day between the issuance of the district courtâs order denying preliminary injunctive relief and the PRAâs January 31, 2009 disclosure deadline. The dissent errs with regard to the time-frame that is relevant to whether a controversy inevitably âevades review.â As we explain above, a controversy âevades reviewâ only if it is of âinherently limited duration.â Bunker, 820 F.2d at 311 (â[t]he exception was designed to apply to situations where the type of injury involved . . . [evades review] by [its] natureâ (emphasis added)). A case is not of âinherently limited durationâ if a court order could maintain a live controversy until the action is fully litigated. While the timing of the district courtâs order made it difficult for Appellants to maintain a live controversy in this case, we can no longer redress Appellantsâ alleged injuries, and we therefore lack jurisdiction over this appeal. Despite the dissentâs contrary assertions, the poor timing of the district courtâs order cannot confer jurisdiction upon us that would not otherwise exist. 22 PROTECTMARRIAGE.COM V. BOWEN sensitive information may well turn on whether preliminary relief is granted at an actionâs inception. As this case demonstrates, the premature disclosure of information can eviscerate a live controversy. Nevertheless, the fact that preliminary relief is technically available to maintain a live controversy will also deprive federal courts of jurisdiction to consider the action as one that is âcapable of repetition, yet evading review.â Accordingly, we advise courts to exercise the utmost caution at the early stages of actions concerning the disclosure of sensitive information, and to consider this âmootness Catch-22â when assessing whether the denial of preliminary relief will likely result in irreparable harm. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). B. Ripeness Finally, Appellants urge that they are entitled to an injunction exempting them from complying with future PRA disclosure requirements, because they expect to participate in future campaigns opposing same-sex marriage. This claim for forward-looking relief is not ripe for judicial review. 1. Legal Standard The ripeness doctrine seeks to identify those matters that are premature for judicial review because the injury at issue is speculative, or may never occur. Alcoa, Inc. v. Bonneville Power Admin., 698 F.3d 774, 793 (9th Cir. 2012); see also Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967). âFor adjudication of constitutional issues, concrete legal issues, presented in actual cases, not abstractions, are requisite.â United Pub. Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 89 (1947) (internal quotations omitted). Concrete legal issues PROTECTMARRIAGE.COM V. BOWEN 23 require more than mere âhypothetical threat[s],â and where we can âonly speculateâ as to the specific activities in which a party seeks to engage, we must dismiss a claim as nonjusticiable. Id. at 90. We have explained that âthe ripeness inquiry contains both a constitutional and a prudential component.â Thomas v. Anchorage Equal Rights Commân, 220 F.3d 1134, 1138 (9th Cir. 2000) (en banc). The constitutional component overlaps with, and is often indistinguishable from, the âinjury in fact prongâ of our standing analysis. Id. Whether we view injury in fact as a question of standing or ripeness, âwe consider whether the plaintiff[] face[s] a realistic danger of sustaining a direct injury as a result of the statuteâs operation or enforcement . . . or whether the alleged injury is too imaginary or speculative to support jurisdiction.â Id. at 1139 (internal quotation marks and citations omitted). If this constitutional requirement is not satisfied, we lack jurisdiction, and we need not consider the prudential component of the ripeness inquiry. We typically look to three factors to assess whether a preenforcement challenge is ripe for review under Article III. Id. We first consider whether the plaintiff articulates a âconcrete plan to violate the law.â Id. (internal quotation marks omitted). With regard to this prong, â[a] general intent to violate a statute at some unknown date in the futureâ is not sufficient, id, and the plaintiff must establish a plan âthat is more than hypothetical,â Wolfson v. Brammer, 616 F.3d 1045, 1059 (9th Cir. 2010). Next, we typically look to whether the government has âcommunicated a specific warning or threat to initiate proceedingsâ under the statute. Thomas, 220 F.3d at 1139. 24 PROTECTMARRIAGE.COM V. BOWEN Our analysis under this second prong is somewhat different, however, in a pre-enforcement challenge that alleges a free speech violation under the First Amendment. See Wolfson, 616 F.3d at 1059â60. In such actions, the plaintiff need not establish an actual threat of government prosecution. Id. Rather, the plaintiff need only demonstrate that a threat of potential enforcement will cause him to self-censor, and not follow through with his concrete plan to engage in protected conduct. Id. Finally, we consider the history of past prosecution or enforcement under the statute. Thomas, 220 F.3d at 1140. Under this third prong, âthe governmentâs active enforcement of a statute [may] render[] the plaintiffâs fear [of injury] . . . reasonable.â Id. Weighing these factors, we will only conclude that a preenforcement action is ripe for judicial review if the alleged injury is âreasonableâ and âimminent,â and not merely âtheoretically possible.â Id. at 1141. A claim is not ripe where â[t]he asserted threat is wholly contingent on the occurrence of unforeseeable events,â or where the plaintiffs do not âconfront a realistic danger of sustaining a direct injury as a result of the statuteâs operation or enforcement.â Id. (internal quotation marks and citations omitted). The application of these principles is illustrated in Renne v. Geary, 501 U.S. 312 (1991), in which the Supreme Court dismissed a challenge to a provision in the California constitution prohibiting political parties and committees from endorsing, supporting, or opposing candidates for nonpartisan offices. In that case, the Republican Committee submitted an affidavit stating: PROTECTMARRIAGE.COM V. BOWEN 25 It is the plan and intention of the Republican Committee to endorse candidates for nonpartisan offices in as many future elections as possible. The Republican Committee would like to have such endorsements publicized by endorsed candidates in their candidateâs statements in the San Francisco voterâs pamphlet, and to encourage endorsed candidates to so publish their endorsements by the Republican Committee. Id. at 317. In holding that the Republican Committee did not present a ripe controversy, the Renne Court explained that â[the Committee] d[id] not allege an intention to endorse any particular candidate . . . . [and there is] no factual record of an actual or imminent application of [the challenged provision] sufficient to present the constitutional issues . . . .â Id. at 321â22 (citations omitted). 2. Application At this stage, any as-applied challenge based on Appellantsâ future activity fails to âtender[] the underlying constitutional issues in clean cut and concrete form.â Socialist Labor Party v. Gilligan, 406 U.S. 583, 588 (1972) (quoting Rescue Army v. Mun. Court, 331 U.S. 549, 584 (1947)). The only information that we have regarding Appellantsâ intended future activities is that Appellants expect to participate in future campaigns opposing same-sex marriage, and that, in so doing, they wish not to comply with the PRAâs disclosure requirements. 26 PROTECTMARRIAGE.COM V. BOWEN Appellants have not offered any information regarding when they may next support a campaign opposing same-sex marriage, what type of campaign they will support, where they will support it, what their involvement will entail, or whether their donors will likely face personal harassment. Without this information, we cannot discern a concrete plan to engage in protected conduct. Rather, the scant information that Appellants provide merely demonstrates â[a] general intent to [engage in protected conduct] at some unknown date in the future,â along with a speculative fear that Appellantsâ donors may be personally harassed as a result of disclosing their contributions to such an effort. Wolfson, 616 F.3d at 1059. These hypothetical plans and fears do not create an immediate threat of self-censorship. And, as in Renne, there is no factual record of the Stateâs bringing PRA enforcement actions against those who do not comply with the statuteâs disclosure requirements. Renne, 501 U.S. at 321â22. Accordingly, any claim based on Appellantsâ future activities is not ripe under the Thomas factors. In reaching this conclusion, we emphasize that we have âno right to pronounce an abstract opinion upon the constitutionality of a [s]tate law,â Poe v. Ullman, 367 U.S. 497, 504 (1961). As-applied challenges to contribution disclosure laws are fact-specific in nature. Whether a group will succeed in asserting such a challenge depends on factors such as the groupâs size, the nature of the campaign, the political tenor in the community, and the actions of third parties and government entities. See Brown v. Socialist Workers â74 Campaign Comm. (Ohio), 459 U.S. 87, 89â92 (1982). Unlike California Pro-Life Council, Inc. v. Getman, 328 F.3d 1088 (9th Cir. 2003) and New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495 (10th Cir. 1995)âupon which the dissent reliesâany opinion that we PROTECTMARRIAGE.COM V. BOWEN 27 could issue regarding Appellantsâ forward-looking claims would require us to speculate about the nature of events that might take place at some unknown time in the future, and to declare the constitutionality of a state law in the context of these uncertain circumstances. Under Article III, we lack the authority to issue such an opinion. See Renne, 501 U.S. at 323 (â[a] determination of the . . . constitutionality of legislation[,] in advance of its immediate adverse effect in the context of a concrete case[,] involves too remote and abstract an inquiry for the proper exercise of the judicial functionâ). CONCLUSION For the foregoing reasons, we affirm the district courtâs judgment with regard to Appellantsâ facial challenges. We dismiss this appeal as non-justiciable with regard to Appellantsâ as-applied challenges, and we remand these claims to the district court with instructions that the court vacate the portion of its opinion concerning Appellantsâ asapplied challenges. See Bunker, 820 F.2d at 313. Appellants shall bear costs on appeal. AFFIRMED in part; DISMISSED in part; and REMANDED with instructions. WALLACE, Circuit Judge, dissenting in part: I do not disagree with the majorityâs disposition of Appellantsâ facial challenges. The majority is correct that our precedent, including our decision in Family PAC v. McKenna, 685 F.3d 800 (9th Cir. 2012), forecloses those challenges. However, I disagree with the majorityâs 28 PROTECTMARRIAGE.COM V. BOWEN determination that Appellantsâ as-applied challenges are nonjusticiable. The majority offers three rationales for its holding that Appellantsâ as-applied challenges are non-justiciable. First, the majority concludes that those challenges are moot, insofar as various Internet websites have republished the information contained in Appellantsâ disclosures. (Majority Op. at 14.) Second, the majority concludes that Appellants cannot avail themselves of the âcapable of repetition, yet evading reviewâ exception to mootness. The majority reaches this conclusion on the ground that this exception only applies to cases in which there is an âinherent limitâ on the âduration of [the] controversy,â and faults Appellants for not seeking and obtaining immediate relief from our court after the district court denied their motion for a temporary restraining order. (Id. at 17â22.) Finally, the majority concludes that insofar as Appellants seek an injunction exempting them from complying with future disclosure requirements, this claim is not ripe because it rests on merely speculative contentions from Appellants about their future activities. (Id. at 22â27.) For the reasons stated below, I disagree with each of these three conclusions. Accordingly, I respectfully dissent from the majorityâs decision to dismiss Appellantsâ as-applied challenges as non-justiciable. I. The majority holds that Appellantsâ request for an injunction requiring California to purge all records of their disclosures does not âpresent a live controversy.â (Majority Op. at 14.) The majorityâs reasoning as to this issue relies on our decision in Doe No. 1 v. Reed, 697 F.3d 1235 (9th Cir. PROTECTMARRIAGE.COM V. BOWEN 29 2012). However, I believe that Reed was wrongly decided, as Judge Randy Smith explained in his concurrence in that case. See id. at 1241 (N.R. Smith, J., concurring in the judgment). Reed involved facts much like those presented in this appeal. The plaintiffs in that case sought an injunction preventing the State of Washington from releasing to the public the names of people who signed petitions supporting a referendum. Id. at 1237. Because those petitions were âalready widely available on the [I]nternet,â the majority dismissed the case as moot. Id. While Judge Randy Smith concurred with the judgment, he wrote separately to explain that âSupreme Court precedent makes clearâ that the case was not moot, insofar as âcontinued government disclosure of confidential materials can be prevented.â Id. at 1241. As he explained, our court could have afforded the plaintiffs a âviable remedy, albeit a much less effective remedy than they originally sought.â Id. As he further explained, there were several respects in which a âviable remedyâ was available from us. First, our court could have âfashion[ed] some form of meaningful reliefâ by âordering the [State] to destroy or return any and all copies [of the petitions] it may have in its possession,â because the Stateâs âcontinued possession of those materialsâ itself constituted an âaffront to the [citizenâs] privacy.â Id. at 1242â43, quoting Church of Scientology of Cal. v. United States, 506 U.S. 9, 12â13 (1992). Second, he pointed out that the majority had âmistakenly assume[d] that every person in the United States or the State of Washington has access to a computer to search for [the] petitions,â whereas in actuality a significant percentage of the public either lacks access to the Internet or âwould not know where to look for [the] petitionsâ on the Internet. Id. at 1243. Thus, by granting the 30 PROTECTMARRIAGE.COM V. BOWEN plaintiffs the injunctive relief they requested, our court could have âprevent[ed] further government disclosure to individuals without access or desire to download petitions from non-government websites,â which would have slowed or reduced âthe dissemination of potentially private information.â Id., citing Massachusetts v. E.P.A., 549 U.S. 497, 525 (2007). I agree with the reasoning of Judge Smithâs concurrence in Reed. I write here to emphasize that the Supreme Courtâs decision in Church of Scientology of California v. United States clearly states that the type of claim raised by the plaintiffs in Reed, and by Appellants in this case, is not moot. There, the Court acknowledged that there are circumstances in which the judiciary âmay not be able to return the parties to the status quo ante,â because there is ânothing a court can do to withdraw all knowledge or informationâ once that information has been disseminated. Church of Scientology, 506 U.S. at 12â13. Nonetheless, Church of Scientology held that âa court can fashion some form of meaningful reliefâ in such circumstances. Id. The Court stated that âeven if the Government retains only copies of the disputed materials,â a citizen âstill suffers injury by the Governmentâs continued possession of those materials, namely, the affront to the [citizenâs] privacy.â Id. at 13. Accordingly, Church of Scientology held that âa court does have power to effectuate a partial remedy by ordering the Government to destroy or return any and all copies it may have in its possession,â and further held that the âavailability of this possible remedy is sufficient to prevent [a] case from being moot.â Id. The majority in Reed failed to recognize that Church of Scientology is controlling. Instead, it ignored the holding of Church of Scientology on the basis of its âcommonsense PROTECTMARRIAGE.COM V. BOWEN 31 conclusion that once a fact is widely available to the public, a court cannot grant any âeffective reliefâ to a person seeking to keep that fact a secret.â Reed, 697 F.3d at 1240. It should go without saying, however, that the âcommonsense conclusionâ of two circuit judges cannot trump an express holding of the Supreme Court. Church of Scientology is still the controlling law of all circuits, including the Ninth Circuit. Reed cannot change that. Indeed, the majority should have interpreted Reed in such a way as to render it consistent with Church of Scientology. As Church of Scientology makes clear, we could order the State of California to âdestroy or return any and all copiesâ of Appellantsâ disclosures that the State âmay have in its possession.â Church of Scientology, 506 U.S. at 13. Thus, under binding Supreme Court precedent, there is available to us a âpossible remedyâ that is âsufficient to prevent this case from being moot.â Id. The majority goes the opposite direction, and attempts to distinguish Church of Scientology by stating that Church of Scientology involved âa finite set of tangible records that had only been disclosed to a party to the action,â whereas this case involves records that have been âwidely available on the Internet for several years.â (Majority Op. at 16 n.3.) Thus, the majority concludes that we cannot provide âthe âeffective reliefâ that the Supreme Court recognized in Church of Scientology.â (Id.) But this conclusion simply repeats the error of the panel in Reed. As pointed out above, Church of Scientology clearly holds that a case is not moot if we can âeffectuate a partial remedy by ordering the Government to destroy or return any and all copies [of records] it may have in its possession.â Church of Scientology, 506 U.S. at 13. The fact that records may have been âwidely availableâ on 32 PROTECTMARRIAGE.COM V. BOWEN the Internet is not relevant to the inquiry mandated by Church of Scientology. Again, that inquiry is whether we can âfashion some form of meaningful reliefâ by remedying the âinjuryâ to citizens caused by the âGovernmentâs continued possessionâ of records, where that possession is an âaffrontâ to the citizenâs privacy. Id. at 12â13. Church of Scientology teaches that courts should not declare a case moot if âany effective relief may be granted.â Forest Guardians v. Johanns, 450 F.3d 455, 461 (9th Cir. 2006) (citation omitted). As one of our sister circuits has explained, this is a âhigh threshold for judging a case moot,â insofar as it requires that we find an appeal âmoot in the constitutional sense only if events have taken place that make it impossible for the court to grant any effectual relief whatever.â United Artists Theatre Co. v. Walton, 315 F.3d 217, 226 (3d Cir. 2003) (internal quotation marks and citation omitted). Both Reed and the majority in this case err by effectively lowering this standard, in contravention of Church of Scientology. That opinion tells us that we should find a case moot only if it is âimpossibleâ for us to grant âany effectual relief whatever.â Church of Scientology, 506 U.S. at 12. By contrast, the majority holds that this case is moot because it is unlikely that we will be able to provide significant effective relief. But that is not the standard set by Church of Scientology. For the reasons stated above, and in accordance with the well-reasoned concurrence of Judge Randy Smith in Reed, I conclude that Reed was wrongly decided. Under the governing law of Church of Scientology, Appellantsâ asapplied challenges are not moot. The majority should have PROTECTMARRIAGE.COM V. BOWEN 33 distinguished Reed and followed Church of Scientology, not the opposite.1 II. Having concluded that Appellantsâ as-applied challenges are moot, the majority proceeds to consider whether those challenges may nonetheless be subject to the exception to mootness for injuries that are âcapable of repetition, yet evading review.â As discussed above, I do not believe that the as-applied challenges are moot. But even if they were moot, I believe that the majority errs in concluding that the âcapable of repetition, yet evading reviewâ exception to mootness does not apply to this case. The majority correctly states that the âcapable of repetition, yet evading reviewâ exception applies where: â(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.â Fed. Election Commân v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007). In my view, Appellants satisfy both of these requirements. I consider each in turn. 1 As the majority observes, this panel is bound by the holding in Reed âunless and until the Supreme Court announces a âclearly irreconcilableâ rule, or our court, sitting en banc, announces an alternate rule.â (Majority Op. at 16 n.3.) My purpose here is to explain the misguided reasoning of Reed, in the hope that our court will reconsider the erroneous rule it propounds, or distinguish Reed and follow the clear mandate of the Supreme Court in Church of Scientology. 34 PROTECTMARRIAGE.COM V. BOWEN A. As to the first requirement, Appellants filed their original complaint on January 7, 2009, two months after the election on Proposition 8 took place. Under California law, Appellants were required to disclose the names of their contributors by January 31, 2009. As the majority observes, the district court denied Appellantsâ motion for a preliminary injunction on January 30, 2009. (Majority Op. at 7.) The next day, Appellants complied with the law and made their disclosures. (Id.) Such a short span of time is clearly âin its duration too shortâ for a claim of this nature to be âfully litigated.â Wis. Right to Life, 551 U.S. at 462. The majority does not contend that this claim could have been âfully litigatedâ in so brief a time. Rather, it faults Appellants for failing to seek preliminary injunctive relief, and concludes that their failure to do so precludes this claim from falling under the âcapable of repetition, yet evading reviewâ exception to mootness. In reaching this conclusion, the majority relies upon our opinions in Headwaters, Inc. v. Bureau of Land Management, 893 F.2d 1012 (9th Cir. 1990), and Bunker Ltd. Partnership v. United States, 820 F.2d 308 (9th Cir. 1987). However, I believe that these opinions do not preclude us from deciding that the âcapable of repetition, yet evading reviewâ exception applies to this case. In Headwaters, we stated that â[w]here prompt application for a stay pending appeal can preserve an issue for appeal, the issue is not one that will evade review.â Headwaters, 893 F.2d at 1016. Likewise, in Bunker we stated that âa party may not profit from the âcapable of repetition, yet evading reviewâ exception to mootness, where through his own failure to seek and obtain a stay he has PROTECTMARRIAGE.COM V. BOWEN 35 prevented an appellate court from reviewing the trial courtâs decision.â Bunker, 820 F.2d at 311 (emphasis added). But the abstract proposition stated in both of these casesâi.e., the proposition that if a party âfail[s] to seek and obtain a stay,â that party may not avail itself of the âcapable of repetition, yet evading reviewâ exception to mootnessâdoes not speak to the particular facts of this case. As pointed out above, the district court issued its order on Appellantsâ motion for a preliminary injunction on January 30, 2009, while Appellants were required to make their disclosures by January 31, 2009. Thus, under the majority opinion, Appellants would have had a single day to âseek and obtain a stayâ from our court in order to âprofit from the âcapable of repetition, yet evading reviewâ exception to mootness.â Id. This draconian constraint is not established by the opinions cited by the majority, which merely speak in general terms of a partyâs obligation to âseek and obtain a stayâ so as to enable our court to review the lower courtâs decision. A recent case in one of our sister circuits emphasizes the unfair position in which Appellants have been placed by the majorityâs holding as to this issue. On December 20, 2013, the District of Utah held that Amendment 3 of the Utah Constitution is unconstitutional, and enjoined the State of Utah from enforcing various statutory provisions that âprohibit a person from marrying another person of the same sex.â Kitchen v. Herbert, 2013 WL 6697874, at *30 (D. Utah Dec. 20, 2013). A few hours after that order was issued, the State of Utah filed a motion to stay the order. See Kitchen v. Herbert, 2013 WL 6834634, at *1 (D. Utah Dec. 23, 2013). Although the district court ordered expedited briefing, it did not rule on the motion to stay for three days. See id. It was not until two weeks later that the Supreme Court issued a stay 36 PROTECTMARRIAGE.COM V. BOWEN pending final disposition of the appeal by the Tenth Circuit. See Herbert v. Kitchen, 134 S. Ct. 893, 893 (2014). As this example illustrates, it is simply not realistic to expect a party to âseek and obtain a stayâ within the span of a single day. Yet that is what the majority effectively requires. On the facts of this case, I would hold that our decisions in Headwaters and Bunker do not prohibit Appellants from satisfying the first requirement of the âcapable of repetition, yet evading reviewâ exception to mootness. The majority asserts that the analysis above errs by focusing on the wrong âtime-frameâ for determining whether âa controversy inevitably âevades review.ââ (Majority Op. at 21 n.4.) The majorityâs contrary analysis hinges on its discussion of âtypes of controversiesâ that are âinherently limited in duration.â (Id. at 17.) The majority argues that the mootness exception discussed here only applies to âinherently limitedâ controversies, which it defines as those that âwill only ever present a live action until a particular date, after which the alleged injury will either cease or no longer be redressible.â (Id. at 18.) To my mind, the majorityâs discussion of an âinherently limitedâ controversy is somewhat metaphysical. The present controversy unquestionably had an âinherent limitâ: namely, January 31, 2009, when Appellants were required by law to make their disclosures. In the same way, a controversy involving a law that âinhibits