Clinton W. Finstad v. State of Florida ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 3, 2008
No. 07-15768 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00664-CV-FTM-29-SPC
CLINTON W. FINSTAD,
Plaintiff-Appellant,
versus
STATE OF FLORIDA, DEPARTMENT OF BUSINESS
AND PROFESSIONAL REGULATION,
Board of Surveyors & Mappers,
ERIC R. HURST,
Assistant General Counsel,
DENNIS E. BLAKENSHIP,
Professional Land Surveyor,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 3, 2008)
Before CARNES, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Clinton W. Finstad appeals the dismissal of his pro se complaint for lack of
subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). The district court concluded
that Finstad’s complaint is moot. We affirm.
We review de novo the dismissal of a complaint under Rule 12(b)(1).
Asociacion de Empleados Del Area Canalera v. Panama Canal Comm’n, 329 F.3d
1235, 1237–38 (11th Cir. 2003). We also review de novo issues of mootness and
subject matter jurisdiction. Dimaio v. Democratic Nat’l Comm., 520 F.3d 1299,
1301 (11th Cir. 2008); Crown Media, LLC v. Gwinnett County, Ga., 380 F.3d
1317, 1323 (11th Cir. 2004).
The jurisdiction of the federal courts is limited to actual cases and
controversies. Crown Media, 380 F.3d at 1324. A complaint becomes moot when
it no longer presents a “live” controversy or a ruling on the issues would have no
practical significance. Id. “The standing doctrine, like the mootness doctrine, is an
aspect of the ‘case or controversy’ requirement.” Sims v. Fla. Dep’t of Highway
Safety, 862 F.2d 1449, 1464 (11th Cir. 1989) (en banc). To establish standing, a
plaintiff must satisfy three requirements: an injury in fact, causation, and
redressability. Tanner Adver. Group, L.L.C. v. Fayette County, Ga., 451 F.3d 777,
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791 (11th Cir. 2006). A plaintiff can maintain a pre-enforcement challenge to a
law if he alleges either that “(1) he was threatened with prosecution; (2)
prosecution is likely; or (3) there is a credible threat of prosecution.” Am. Civil
Liberties Union v. The Fla. Bar, 999 F.2d 1486, 1492 (11th Cir. 1993).
Finstad’s complaint is moot. Finstad, a surveyor, complains that his rights
under the First Amendment were violated when the Board of Surveyors charged
him with violating a state administrative rule that prohibited disclaimers on
surveys, but the administrative complaint was later dismissed by a panel of the
Board. See Burke v. Barnes, 479 U.S. 361, 363, 107 S. Ct. 734, 736 (1987) (the
plaintiff must have a “live” controversy “at the time the federal court decides the
case; it is not enough that there may have been a live case or controversy when the
case” was filed). Although Finstad argues that the Board dismissed the complaint
voluntarily to avoid suit, see Troiano v. Supervisor of Elections in Palm Beach
County, Fla., 382 F.3d 1276, 1282–83 (11th Cir. 2004), the panel concluded that
the administrative rule does not prohibit the conduct alleged in Finstad’s
complaint. The panel instead concluded that the current rule permits a surveyor to
use “explanatory notes” on a survey. See Am. Civil Liberties Union, 999 F.2d at
1492.
Finstad’s complaint also does not fall within the exception to the doctrine of
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mootness for repetitious harms that evade review because nothing in the record
suggests that Finstad is likely to face prosecution for violation of the same
administrative rule. See Murphy v. Hunt, 455 U.S. 478, 482, 102 S. Ct. 1181,
1183 (1982). Although Eric Hurst, Assistant General Counsel of the State
Department of Business and Professional Regulation, suggested that the Board
would promulgate a rule to prohibit disclaimers, Hurst’s statement is speculative.
A complaint about the adoption of that potential rule is not ripe. Cf. Atlanta Gas
Light Co. v. U.S. Dep’t of Energy, 666 F.2d 1359, 1370 (11th Cir. 1982) (pre-
enforcement challenge to constitutionality of Section 402 of Fuel Use Act was not
ripe when states had not adopted laws to enforce the section).
Finstad’s remaining arguments also fail. Finstad asserts that his corporation
and other surveyors face prosecution for the use of disclaimers, but he lacks
standing to pursue claims on behalf of an entity or another person. See Wolff v.
Cash 4 Titles, 351 F.3d 1348, 1357 (11th Cir. 2003). Finstad complains, for the
first time on appeal, that the state violated his rights under the Fourth, Fifth, and
Fourteenth Amendments and the Board acted under an invalid grant of legislative
authority, but these arguments are not properly before this Court. See Access
Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).
The dismissal of Finstad’s complaint is AFFIRMED.
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