McLean v. City Of Alexandria
Filing
32
MEMORANDUM OPINION in re 21 MOTION to Dismiss. Signed by District Judge James C. Cacheris on 02/02/2015. (jlan)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
SCOTT MCLEAN,
Plaintiff,
v.
CITY OF ALEXANDRIA,
Defendant.
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M E M O R A N D U M
1:14cv1398 (JCC/IDD)
O P I N I O N
The City of Alexandria prohibits parking a vehicle
upon any street for the purpose of displaying the vehicle for
sale.
City resident Scott McLean claims this prohibition
violates the First Amendment to the Constitution.
Recently, the
City of Alexandria temporarily suspended enforcement of this
prohibition, pending review by the City Council.
The issue now
before the Court is whether the City’s temporary suspension
moots Mr. McLean’s claims.
For the reasons discussed in detail
below, the Court finds the temporary suspension does not moot
Mr. McLean’s claims, and therefore, the Court will deny the City
of Alexandria’s Motion to Dismiss [Dkt. 21].
I. Background
Plaintiff Scott McLean (“McLean”), a resident of
Defendant City of Alexandria (the “City”), wants to sell his
2007 Dodge Ram 1500 pick-up truck by parking it on a City street
1
near his home with a for-sale sign in the window.
(Compl. [Dkt.
1] ¶ 13.) However, section 10-4-13(a) of the City’s Code of
Ordinances (“the Ordinance”) prohibits “park[ing] a vehicle upon
any street for the purpose of displaying the vehicle for sale.”
Any person who violates the Ordinance is guilty of a traffic
infraction and may be fined not more than $100.
of Ordinances § 10-4-13(c).
Alexandria Code
In fact, when McLean previously
attempted to sell a different vehicle in October of 2012 by
parking it on a City street near his home, he received a
citation that carried a fine, which he paid.
(Compl. ¶¶ 10-11.)
To avoid further citations, McLean moved the vehicle less than a
mile away to the neighboring jurisdiction of Arlington County,
Virginia, where he parked the vehicle on a public street with a
for-sale sign displayed until the vehicle eventually sold in
February of 2013.
(Id. at ¶ 12.)
McLean filed this action against the City and claims
that the Ordinance is an overly-broad, content-based speech
restriction that violates his First Amendment right to
communicate a truthful message to the public about a lawful item
for sale.
(Compl. ¶ 29.)
McLean initially sought a preliminary
injunction enjoining the City from enforcing the Ordinance.
[Dkt. 4.]
The preliminary injunction was resolved on October
28, 2014, when the City announced it was suspending enforcement
of the Ordinance pending a review process that included public
2
comment,1 which could take months to complete.2
(Def.’s Mem.
[Dkt. 22] at 2; Order [Dkt. 15].)
The City now moves to dismiss the Complaint for lack
of jurisdiction, arguing McLean’s claims have been rendered moot
by the City’s voluntary suspension of enforcing the Ordinance.
[Dkt. 21.]
McLean opposes the Motion to Dismiss and argues that
because the City’s suspension is merely temporary, there is
nothing to prevent the City from enforcing the Ordinance in the
future.
(Pl.’s Mem. in Opp’n [Dkt. 29].)
With briefing and
argument now complete, the Motion to Dismiss is ripe for
disposition.
II. Legal Standard
“[I]n passing on a motion to dismiss, whether on the
ground of lack of jurisdiction over the subject matter or for
failure to state a cause of action, the allegations of the
complaint should be construed favorably to the pleader.”
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other
grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982).
A motion
pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure challenges the Court’s subject matter jurisdiction
1
Accordingly, the Court has not made any findings regarding the
merits of McLean’s claims and need not do so at this juncture.
For purposes of this motion, however, the Court construes the
allegations in the Complaint in McLean’s favor.
2
At the hearing, counsel for the City estimated the City’s
review process could last until March of 2015.
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over the pending action.
Fed. R. Civ. P. 12(b)(1).
“Federal
courts are courts of limited jurisdiction, and we presume that a
cause lies outside this limited jurisdiction.
The burden of
establishing the contrary rests upon the party asserting
jurisdiction.”
Wheeling Hosp., Inc. v. Health Plan of the Upper
Ohio Valley, Inc., 683 F.3d 577, 583-84 (4th Cir. 2012)
(citation omitted).
Relevant here, “[a] Court is deprived of
jurisdiction over a case when the case becomes moot.”
Williams
v. Ozmint, 716 F.3d 801, 809 (4th Cir. 2013) (citing Iron Arrow
Honor Soc’y v. Heckler, 464 U.S. 67, 70 (1983)) (additional
citation omitted).
III. Analysis
The City moves for dismissal, claiming “the injunctive
and declaratory relief that the plaintiff has requested is
clearly moot” because the City has temporarily suspended
enforcement of the Ordinance.
argument is unpersuasive.
(Def.’s Mem. at 2-5.)
This
As counsel for the City conceded at
oral argument, there is a possibility that the City Council will
not repeal the Ordinance and resume enforcement in the future.
Thus, the temporary suspension does not render this case moot,
and the Court will deny the motion.
“[M]ootness [is] the doctrine of standing in a time
frame.
The requisite personal interest that must exist at the
commencement of litigation (standing) must continue throughout
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its existence (mootness).”
United States Parole Cmm’n v.
Geraghty, 445 U.S. 388, 397 (1980) (quoting Henry Monaghan,
Constitutional Adjudication: The Who and When, 82 Yale L.J.
1363, 1384 (1973)).
Relevant to this matter, if a challenged
law or ordinance is repealed or expires, the case is moot.
See,
e.g., Kremens v. Bartley, 431 U.S. 119, 128 (1977) (finding the
case moot after statutes were repealed).
However, repealing the challenged law does not render
a case moot if there is a reasonable possibility that the
government would reenact the law if the proceedings were
dismissed.
See, e.g., City of Mesquite v. Aladdin’s Castle,
Inc., 455 U.S. 283 (1983).
as this is a stringent one.
“The test for mootness in cases such
Mere voluntary cessation of
allegedly illegal conduct does not moot a case . . . . A case
might become moot if subsequent events made it absolutely clear
that the allegedly wrongful behavior could not reasonably be
expected to recur.”
Id. at 289 n.10 (citations and internal
quotations omitted); see also Town of Nags Head v. Toloczko, 728
F.3d 391, 395 n.3 (4th Cir. 2013) (quoting Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000))
(internal quotations omitted).
Stated differently, if the Court
determines there is a reasonable likelihood the Ordinance could
be reenacted or enforced in the future, the case should not be
dismissed as moot.
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Here, the City admits the suspension of the Ordinance
is merely temporary pending further review.
(Def.’s Mem. at 2.)
The City even concedes that it could resume enforcement of the
Ordinance in the future.
(Id. (“If [the review process] . . .
resulted in the ordinance being left in place, there would be a
30 day ‘grace period’ before any enforcement would resume.”).
Even in the face of the Supreme Court precedent discussed above,
the City argues that this possibility of future enforcement of
the Ordinance does not save McLean’s claim from dismissal due to
mootness.
In support of this argument, the City primarily
relies on two cases:
Williams v. Ozmint, 716 F.3d 801 (4th Cir.
2013) and Rock for Life-UMBC v. Hrabowski, 411 F. App’x 541 (4th
Cir. Dec. 16, 2010) (unpublished), cert. denied, 132 S. Ct. 92
(Oct. 3, 2011).
Both cases are distinguishable from the facts
and circumstances of this case.
In Williams, a prison suspended a prisoner’s
visitation privileges for two years after he allegedly violated
a prison regulation, but the prison never formally charged him
with a violation or held a disciplinary hearing.
803-804.
716 F.3d at
Among other claims, the prisoner sought injunctive
relief under 42 U.S.C. § 1983 by asking that his visitation
privileges be restored.
Id. at 808.
By the time the Fourth
Circuit held oral argument, the prisoner conceded that his
visitation privileges had been restored.
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Id.
After discussing
the mootness doctrine at length, the Fourth Circuit held that
the prisoner’s claim for injunctive relief was moot because he
already received “the relief he . . . sought to obtain through
the claim . . . [and] the court no longer has effective relief
to offer.”
Id. at 809 (quoting Friedman’s, Inc. v. Dunlap, 290
F.3d 191, 197 (4th Cir. 2002)) (citations and internal quotation
marks omitted).
Here, first, McLean has not received the relief he
seeks in the Complaint.
McLean did receive preliminary relief
when the City suspended enforcement of the Ordinance, but so
far, that is all.
Second, the Court does still have effective
relief to offer -- mainly, “a declaration that the . . .
Ordinance on its face and as applied to McLean abridges the
freedom of speech protected by the First Amendment[.]”
[Dkt. 1] at 9.)
(Compl.
This case fits in the narrow exception to the
mootness doctrine recognized by the Fourth Circuit.
McLean’s
claims are not moot because “there is a reasonable expectation
that the same complaining party will be subject to the same
action again.”
Williams, 716 F.3d at 809-810 (quoting Lux v.
Judd, 651 F.3d 396, 401 (4th Cir. 2011) (quoting Fed. Election
Comm’n v. Wisc. Right to Life, Inc., 551 U.S. 449, 462 (2007))).
Accordingly, a detailed reading of Williams does not render this
case moot.
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Similarly, Rock for Life does not advance the City’s
position.
A pro-life student group brought a section 1983
action against the University of Maryland, Baltimore County in
relation to their request “to reserve non-academic campus space
in order to display a series of posters known as the Genocide
Awareness Project (the “GAP display”3).”
411 F. App’x at 543.
After the University denied the student group’s request to use a
particular space on campus, the student group challenged the
University’s facilities policy as an unconstitutional
restriction of their First Amendment rights.
Id. at 545.
The
University subsequently amended the policy and granted the
student’s group third request to use the particular space on
campus that was previously prohibited under the old policy.
at 546.
Id.
The Fourth Circuit held that the student group’s facial
challenge to the constitutionality of the policy was moot, which
the student group conceded.
Id. at 550.
But the court also
held that the student’s group claim for monetary damages under
section 1983 for a prior suppression of speech remained alive,
even in the face of “permanent remedial measures,” like amending
the policy at issue.
Id. (citing Covenant Media of S. Carolina,
LLC v. City of N. Charleston, 493 F.3d 421, 429 n.4 (4th Cir.
2007)) (additional citations omitted).
3
The GAP display apparently compares abortion to historically
recognized forms of genocide. Id.
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Here, unlike the University in Rock for Life, the City
has not revised or amended the Ordinance at issue; it has merely
suspended enforcement.
McLean has not conceded his
constitutional challenge to the validity of the Ordinance, and
the Ordinance remains “on the books,” even if enforcement has
been suspended during the review process.
Regardless, even
assuming the Court found that McLean’s constitutional challenge
to the Ordinance was moot -- to be clear, it has not -- his
claims for nominal damages for the prior suppression of speech
would remain.
Rock for Life, 411 F. App’x at 550.
Accordingly,
McLean’s claims are also not rendered moot under Rock for Life.
In conclusion, the Court finds there is a reasonable
likelihood the Ordinance could be reenacted or enforced in the
future if the Court dismissed this action.
In accordance with
the precedent discussed above from both the Supreme Court of the
United States and the Fourth Circuit, the Court will not dismiss
this case as moot.
See City of Mesquite v. Aladdin’s Castle,
Inc., 455 U.S. 283 (1983); see also Town of Nags Head v.
Toloczko, 728 F.3d 391 (4th Cir. 2013); Williams v. Ozmint, 716
F.3d 801 (4th Cir. 2013); Rock for Life-UMBC v. Hrabowski, 411
F. App’x 541 (4th Cir. Dec. 16, 2010).
IV. Conclusion
For the foregoing reasons, the Court will deny the
City’s motion to dismiss.
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An appropriate Order shall issue.
February 2, 2015
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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