1	As set forth above, no injunction is appropriate given the prudential concerns of
2	separation of powers and standing. For those same reasons, declaratory relief is equally
3	inappropriate.9
4
5	Conclusion
6	Accordingly, the undersigned recommends:
7	1. That the entire case be dismissed for lack of jurisdiction because the courts cannot enjoin the
8	President in the circumstances of this case, nor can the courts grant declaratory relief against the
9	President in the circumstances of this case;
10	2. In the alternative:
11	a. that prayer pre se at the Presidential inauguration does not violate the Establishment
12	Clause of the First Amendment to the Constitution;
13	b. Newdow lacks standing to challenge the content of the prayer given at future inaugurations
14	and that part of his complaint should be dismissed;
15	c. any request for declaratory relief for alleged violations of the First Amendment is improper
16	in the circumstances of this case.
17	Under either alternative, the President's motion for summary judgment should granted on the
18	grounds discussed above; Newdow's cross-motion for summary judgment should be denied.
19	These findings and recommendations are submitted to the United States District
20	Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days
21	after being served with these findings and recommendations, any party may file written objections
22
23         'Plaintiff makes a reference in the text of his complaint to mandamus, but prays for injunctive and declaratory relief. "Mandamus is an extraordinary remedy and is available to compel a federal
24  official to perform a duty only if: (1) the individual's claim is clear and certain; (2) the official's duty is nondiscretionary, ministerial, and so plainly prescribed as to be free from doubt, and (3) no other adequate remedy is available." Patel v. Reno. 134 F.3d 929,931 (9th Cir. 1997). In the context
26  of prayer at presidential inaugurations, mandamus is not properly considered. See Swan v. Clinton. supra.
27
-13-