David Ermold, et al v. Kim Davi
OPINION and JUDGMENT filed : REVERSED and REMANDED. Decision for publication. Eugene E. Siler, Jr. (CONCURING), Karen Nelson Moore (AUTHORING), and Richard Allen Griffin, Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0098p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DAVID ERMOLD and DAVID MOORE,
KIM DAVIS, Individually and in her Official Capacity
as Rowan County Clerk,
Appeal from the United States District Court
for the Eastern District of Kentucky at Ashland.
No. 0:15-cv-00046—David L. Bunning, District Judge.
Argued: March 8, 2017
Decided and Filed: May 2, 2017
Before: SILER, MOORE, and GRIFFIN, Circuit Judges.
ARGUED: Michael J. Gartland, DELCOTTO LAW GROUP, PLLC, Lexington, Kentucky, for
Appellants. Roger K. Gannam, LIBERTY COUNSEL, Orlando, Florida, for Appellee. ON
BRIEF: Michael J. Gartland, DELCOTTO LAW GROUP, PLLC, Lexington, Kentucky,
Thomas Paul Szczgielski, Joseph D. Buckles, CHANEY BUCKLES SZCZYGIELSKI PLLC,
Lexington, Kentucky, for Appellants. Roger K. Gannam, Matthew D. Staver, Horatio G. Mihet,
LIBERTY COUNSEL, Orlando, Florida, A.C. Donahue, DONAHUE LAW GROUP, P.S.C.,
Somerset, Kentucky, for Appellee.
MOORE, J., delivered the opinion of the court in which SILER and GRIFFIN, JJ., joined.
SILER, J. (pg. 8), delivered a separate concurrence.
Ermold et al. v. Davis
KAREN NELSON MOORE, Circuit Judge. Plaintiffs-Appellants David Ermold and
David Moore sought a marriage license from Rowan County, Kentucky, Clerk Kim Davis. Upon
being denied the license, Ermold and Moore filed this damages-only 42 U.S.C. § 1983 action
against Davis in both her individual and official capacities.
The district court sua sponte
dismissed Ermold’s and Moore’s case after we ordered the district court to vacate a preliminary
injunction order in an entirely separate action. See Miller v. Davis, 667 F. App’x 537, 538 (6th
Cir. 2016) (mem.). For the reasons stated below, we REVERSE the district court’s judgment
dismissing this case and REMAND for proceedings consistent with this opinion.
On June 26, 2015, the Supreme Court held in Obergefell v. Hodges, 135 S. Ct. 2584,
2605 (2015), that Kentucky’s definition of marriage as a union between one man and one woman
violated the Fourteenth Amendment to the United States Constitution, “to the extent [it]
exclude[s] same-sex couples from civil marriage on the same terms and conditions as oppositesex couples.” That same day, then-Governor of Kentucky, Steven Beshear, ordered all of
Kentucky’s county clerks to begin issuing marriage licenses to same-sex couples. R. 1-1 (Gov.
License Directive) (Page ID #7). On July 6, 2015, David Ermold and David Moore, two male
residents of Rowan County, Kentucky, who had by that time been in a committed relationship
for seventeen years, applied for a marriage license at the Rowan County Clerk’s Office. R. 1
(Compl. at 2) (Page ID #2). Rowan County Clerk Kim Davis denied Ermold’s and Moore’s
application, citing her personal religious beliefs about the origin of marriage. Id. at 3 (Page ID
On July 10, 2015, Ermold and Moore filed a federal civil-rights complaint pursuant to 42
U.S.C. § 1983 against Davis both individually and in her official capacity as the Rowan County
Clerk. R. 1 (Compl. at 1–3) (Page ID #1–3). The complaint alleged a violation of Ermold’s and
Moore’s clearly established right to marry each other under the Fourteenth Amendment. Id. at
Ermold et al. v. Davis
3–6 (Page ID #3–6). Because a putative class action seeking declaratory and injunctive relief
had been filed against Davis one week earlier, Ermold and Moore sought only damages (both
actual and punitive). Id. at 6 (Page ID #6). See Miller v. Davis, No. 0:15-cv-00046 (E.D. Ky.
July 2, 2015).
Davis filed a motion to dismiss the complaint on August 4, 2015, arguing, inter alia, that
Ermold’s and Moore’s constitutional rights were not violated because they could have traveled to
other Kentucky counties to obtain marriage licenses and that Davis was protected by qualified
immunity because Ermold and Moore had not pleaded a violation of a clearly established right.
R. 11 (Mot. to Dismiss at 1) (Page ID #34); R. 11-1 (Mem. on Mot. to Dismiss at 9–12) (Page ID
#51–54). R. 13 (Order) (Page ID #74). On August 25, Ermold and Moore filed their response in
opposition to Davis’s motion to dismiss their complaint. R. 12 (Resp. in Opp. to Mot. to
Dismiss) (Page ID #65). No reply was filed in this case. The district court sua sponte stayed
briefing in this case on August 26, 2015. R. 13 (Stay Order) (Page ID #74).
On August 12, 2015, the district court entered a preliminary injunction in another case,
Miller v. Davis, which enjoined Davis from refusing to issue marriage licenses to all of the
Miller plaintiffs. 123 F. Supp. 3d 924, 944 (E.D. Ky. 2015). Davis immediately appealed in
Miller. We declined to grant Davis a stay pending appeal in Miller, concluding that it “cannot be
defensibly argued that the holder of the Rowan County Clerk’s office . . . may decline to act in
conformity with the United States Constitution as interpreted by a dispositive holding of the
United States Supreme Court,” and that there was therefore “little or no likelihood that the Clerk
in her official capacity will prevail on appeal.”
Miller v. Davis, No. 15-5880, 2015 WL
10692640, at *1 (6th Cir. Aug. 26, 2015). Davis’s application for a stay in the Supreme Court
was denied. Davis v. Miller, 136 S. Ct. 23 (2015) (mem.).
Ermold and Moore moved in December 2015 in the district court to set a briefing
schedule (i.e., setting a date for the filing of a reply) on the motion to dismiss filed in this case or
to clarify the August 26 stay order. R. 14 (Mot. for Briefing Sched.) (Page ID #75). Davis filed
a motion in opposition, R. 15 (Mot. in Opp. to Mot. for Briefing Sched.) (Page ID #81), and
Ermold and Moore replied, R. 16 (Reply to Mot. for Briefing Sched.) (Page ID #86).
Ermold et al. v. Davis
On December 22, 2015, Kentucky Governor Matthew Bevin signed Executive Order
2015-048, which sought to resolve the conflict between the Kentucky Constitution’s definition of
marriage as between one man and one woman and the Supreme Court’s decision in Obergefell.
The Executive Order recognized that “the offices of the County Clerks of the Commonwealth are
now required to issue marriage licenses in accordance with KRS Chapter 402 to all eligible
applicants, including those intending to enter into same-sex marriages,” but asserted that
requiring county clerks to issue marriage licenses to same-sex couples “creates a substantial
burden on the freedom of religion of some County Clerks and employees of their offices because
the current form bears the name of the issuing County Clerk,” which some could associate as an
endorsement by the county clerk of same-sex marriage. Attached to the Executive Order was a
revised Kentucky Marriage License form which removed from the form the name and authority
of the county clerk.
On April 13, 2016, Governor Bevin signed Kentucky Senate Bill 216. See 2016 Ky.
Laws Ch. 132 (SB 216). Senate Bill 2016 amended the Kentucky marriage-license issuance
process so that county clerks’ names and signatures no longer appear on marriage-license forms,
and removed the requirement that “authorizing statements” and statements of recordation be
made by the county clerk. Senate Bill 216 took effect on July 14, 2016.
On July 13, 2016, we dismissed Davis’s appeal from the district court’s preliminary
injunction issued in Miller, and remanded Miller back to the district court. Miller, 667 F. App’x
at 538. On August 18, 2016, the district court dismissed the Miller plaintiffs’ action, Ermold’s
and Moore’s action, and a third case, Yates v. Davis, No. 0:15-cv-00062 (E.D. Ky. Aug. 18,
2016). R. 19 (Dismissal Order) (Page ID #95). The district court concluded that because
“marriage licenses continue to [be] issued without incident, there no longer remains a case or
controversy before the Court.” Id. at 2 (Page ID #96) (internal citation omitted).
A. Standard of Review
We review de novo a district court’s dismissal for a lack of case or controversy. Demis v.
Sniezek, 558 F.3d 508, 512 (6th Cir. 2009) (“This Court reviews jurisdictional issues de novo.”).
Ermold et al. v. Davis
Section 1983 of Title 42 of the United States Code provides a civil cause of action for persons
“who are deprived of any rights, privileges, or immunities secured by the Constitution or federal
laws by those acting under color of state law.” Smith v. City of Salem, 378 F.3d 566, 576 (6th
B. Kentucky Senate Bill 216 Did Not Moot Plaintiffs’ Case
On August 18, 2016, the district court dismissed this action as moot, concluding that after
the passage of Kentucky Senate Bill 216 “in view of the fact that the marriage licenses continue
to [be] issued without incident, there no longer remains a case or controversy before the Court.”
R. 19 (Dismissal Order at 2) (Page ID #96). According to the district court, “Plaintiffs filed the
above-captioned actions to contest the ‘no marriage licenses’ policy implemented by Defendant
Kim Davis, Rowan County Clerk.” Id. at 1 (Page ID #95). The district court concluded that
because Ermold and Moore were eventually issued a marriage license, the dispute in their case
was resolved. We conclude that the district court’s characterization of this case as simply
contesting the “no marriage licenses” policy is inaccurate because Ermold and Moore did not
seek an injunction—they sought only damages. This action is not a general challenge to Davis’s
policy, but rather seeks damages for a particularized harm allegedly suffered by a specific set of
Article III of the United States Constitution limits the power of the federal courts to
“Cases” and “Controversies.” U.S. Const. Art. III, § 2. The case-or-controversy requirement
“subsists through all stages of federal judicial proceedings, trial and appellate.” Chafin v.
Chafin, 133 S. Ct. 1017, 1023 (2013) (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477
(1990)). A federal court “lacks jurisdiction to consider any case or issue that has lost its
character as a present, live controversy and thereby becomes moot.” Demis, 558 F.3d at 512
(internal quotation marks omitted). “Simply stated, a case is moot when the issues presented are
no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Id. (quoting
Int’l Union v. Dana Corp., 697 F.2d 718, 720–21 (6th Cir. 1983)).
Therefore, “[i]f an
intervening circumstance deprives the plaintiff of a ‘personal stake in the outcome of the
lawsuit,’ at any point during the litigation, the action can no longer proceed and must be
Ermold et al. v. Davis
dismissed as moot.” Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016) (quoting
Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1528 (2013)).
Claims for damages are largely able to avoid mootness challenges. 13C Charles Alan
Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3553.3 (3d ed.
2017). Damages claims “are retrospective in nature—they compensate for past harm. By
definition, then, such claims cannot be moot.” CMR D.N. Corp. v. City of Philadelphia, 703
F.3d 612, 622 (3d Cir. 2013) (internal quotation marks omitted). The Supreme Court has held
that a damages claim is not rendered moot because a related injunctive-relief claim becomes
moot. See Powell v. McCormack, 395 U.S. 486, 498 (1969) (holding that a claim for back pay
survived even after the ongoing harm an injunction sought to remedy was removed); Bd. of
Pardons v. Allen, 482 U.S. 369, 370 n.1 (1987) (concluding that paroled prisoners seeking
injunctive relief regarding their prison’s parole procedures could proceed on a damages claim
even after they were released on parole); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 478
n.1 (1989) (noting that the expiration of Richmond’s affirmative-action ordinance did not moot a
damages claim relating to a contract denial under the ordinance). We have similarly held that
although “the repeal or amendment of a law moots challenges to the original law . . . [t]he
existence of [a] damages claim preserves the plaintiffs’ backward-looking right to challenge the
original law and to preserve a live case or controversy over that dispute.” Midwest Media Prop.,
L.L.C. v. Symmes Twp., 503 F.3d 456, 460–61 (6th Cir. 2007). See also Ohio Citizen Action v.
City of Englewood, 671 F.3d 564, 581 (6th Cir. 2012) (“However, if the plaintiff’s complaint
includes a claim for damages, that claim ‘preserves the plaintiff[’s] backward-looking right to
challenge the original law and to preserve a live case or controversy over that dispute.’”)
(quoting Midwest Media, 503 F.3d at 461); Prime Media, Inc. v. City of Brentwood, 398 F.3d
814, 824 (6th Cir. 2005) (holding that a court’s order invalidating part of a city billboard
ordinance did not moot a claim for damages arising from that invalidated portion of the
ordinance). Even “a claim for nominal damages . . . is normally sufficient to establish standing
[and] defeat mootness . . . .” Lynch v. Leis, 382 F.3d 642, 646 n.2 (6th Cir. 2004).
Ermold and Moore contend that Governor Bevin’s signing of Senate Bill 216 did not
moot their case because they sought damages for harms allegedly caused by Davis’s refusal to
Ermold et al. v. Davis
issue them a marriage license. They argue that Senate Bill 216, “is irrelevant to Plaintiffs’
entitlement to damages for the denial of their marriage license one year prior.” Appellants Br. at
15. Davis responds that Governor Bevin’s Executive Order “fundamentally changed the legal
framework for analyzing Davis’ conduct prior to” its enactment, and that Senate Bill 216
“further answered the tension” that the Executive Order sought to remedy. Appellee Br. at 36,
25. We disagree. Neither the Executive Order nor Senate Bill 216 rendered this damages-only
case moot because, as we have held, “‘so long as the plaintiff has a cause of action for damages,
a defendant’s change in conduct will not moot the case.’ Indeed where a claim for injunctive
relief is moot, relief in the form of damages for a past constitutional violation is not affected.”
Gottfried v. Med. Planning Servs., Inc., 280 F.3d 684, 691 (6th Cir. 2002) (quoting Buckhannon
Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 608–09 (2001)
Ermold and Moore concede that “[t]here is only one potentially relevant exception to the
rule that actions containing damages claims cannot be moot,” but argue that “it is not applicable
here.” Appellants Br. at 15. Damages claims may be moot where the damages would be “so
insubstantial or so clearly foreclosed by prior decisions that th[e] case may not proceed.” Id.
(quoting Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9 (1978)). We conclude that
this exception does not apply to Ermold’s and Moore’s case. The record does not support an
argument that Appellants’ damages claims are insubstantial or otherwise foreclosed.
therefore conclude that the enactment of Senate Bill 216 did not moot Ermold’s and Moore’s
Whether Ermold and Moore will prevail on the merits is not a question currently before
us. We hold today that our July 13, 2016 order instructing the district court to vacate its
preliminary injunction in Miller did not render this damages-only action moot. Therefore, we
REVERSE the district court’s judgment and REMAND for further proceedings consistent with
Ermold et al. v. Davis
SILER, Circuit Judge, concurring. I concur in the majority decision, but I wish to
amplify on the pending case on remand. The district court may have meant to dismiss this case
because Kim Davis was protected by the Kentucky Religious Freedom Restoration Act, KRS
§ 446.350 (2013), but it did not discuss the issue. The statute provides as follows:
Government shall not substantially burden a person’s freedom of religion. The
right to act or refuse to act in a manner motivated by a sincerely held religious
belief may not be substantially burdened unless the government proves by clear
and convincing evidence that it has a compelling governmental interest in
infringing the specific act or refusal to act and has used the least restrictive means
to further that interest. A “burden” shall include indirect burdens such as
withholding benefits, assessing penalties, or an exclusion from programs or access
That law was passed by the Kentucky General Assembly before Obergefell v. Hodges,
135 S. Ct. 2584 (2015), was decided. To be sure, maybe Davis was not using that law as a shield
to excuse her from issuing the marriage licenses after Obergefell. Or maybe no defense could be
made based upon that statute once Obergefell was decided in 2015. But the district court has
never ruled on the effect of that statute upon the conduct of the county clerk. It should have the
first opportunity upon remand to decide whether that or any other provision of the law would
protect Davis as a qualified-immunity or absolute-immunity defense under the circumstances.
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