Bruce & Tanya & Associates v. Board of Supervisors, Fairfax ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-1151
BRUCE & TANYA & ASSOCIATES, INC.,
Plaintiff - Appellant,
v.
BOARD OF SUPERVISORS OF FAIRFAX COUNTY, VIRGINIA; FAIRFAX
COUNTY, VIRGINIA; STEPHEN BRICH, as Commissioner of Highways for the
Commonwealth of Virginia,
Defendants - Appellees,
and
JACK WEYANT, as Director of the Department of Code Compliance,
Defendant.
No. 19-1153
BRUCE & TANYA & ASSOCIATES, INC.,
Plaintiff - Appellee,
v.
BOARD OF SUPERVISORS OF FAIRFAX COUNTY, VIRGINIA; FAIRFAX
COUNTY VIRGINIA;
Defendants - Appellants,
and
JACK WEYANT, as Director of the Department of Code Compliance; STEPHEN
BRICH, as Commissioner of Highways for the Commonwealth of Virginia,
Defendants.
Appeals from the United States District Court for the Eastern District of Virginia, at
Alexandria. Leonie M. Brinkema, District Judge. (1:17-cv-01155-LMB-TCB)
Submitted: March 27, 2020 Decided: May 10, 2021
Before AGEE, THACKER, and RUSHING, Circuit Judges.
Affirmed by unpublished opinion. Judge Rushing wrote the opinion, in which Judge Agee
and Judge Thacker joined.
Jesse R. Binnall, HARVEY & BINNALL, PLLC, Alexandria, Virginia, for
Appellant/Cross-Appellee. Mark R. Herring, Attorney General, Donald D. Anderson,
Deputy Attorney General, Toby J. Heytens, Solicitor General, Matthew R. McGuire,
Principal Deputy Solicitor General, Michelle S. Kallen, Deputy Solicitor General, Brittany
M. Jones, John Marshall Fellow, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for State Appellee. Elizabeth D. Teare, County Attorney,
Sarah A. Hensley, Assistant County Attorney, OFFICE OF THE COUNTY ATTORNEY,
Fairfax, Virginia, for Appellees/Cross-Appellants.
Unpublished opinions are not binding precedent in this circuit.
2
RUSHING, Circuit Judge:
Virginia has long regulated outdoor advertising visible from its highways to
promote the safety of travelers and the aesthetics of its roadways. This case concerns two
provisions of Virginia’s statutory scheme, Va. Code Ann. § 33.2-1224, which forbids signs
within the limits of any highway, and Va. Code Ann. § 33.2-1204, which lists exceptions
to various signage regulations. Plaintiff Bruce & Tanya & Associates, Inc. (BTA), a real
estate firm that uses roadside signs to advertise, contends that Section 1224, as modified
by Section 1204, is an unlawful prior restraint, an impermissible content-based restriction
on speech, and unconstitutionally vague. BTA further alleges that Section 1224 has been
selectively enforced against it.
The defendants—Fairfax County and its Board of Supervisors (collectively, the
County) and Stephen Brich, the Commissioner of Highways for the Commonwealth of
Virginia—are State and local government actors with authority to enforce Section 1224.
The district court granted judgment for the defendants on some claims and dismissed the
remainder. After dismissal, the County sought attorney’s fees from BTA, which the district
court denied. BTA appealed from the court’s final judgment, and the County cross-
appealed the denial of fees. For the reasons that follow, we affirm the district court’s
judgment in both cases.
I.
A.
Virginia regulates outdoor advertising “in areas adjacent to the rights-of-way of the
highways within the Commonwealth” according to a detailed scheme of interconnected
3
regulations. Va. Code Ann. § 33.2-1200(A); see id. §§ 33.2-1200–33.2-1234. Different
statutory provisions apply depending on the type of advertising (for example, billboards or
on-premises signs); where the advertising is located (for example, within a municipality or
not); and whether the advertising is visible from particular roads (for example, an Interstate
System, National Highway System, or federal-aid primary highway), among other
distinctions. Some signs are absolutely forbidden—such as an advertisement prominently
displaying the word “stop” or “danger,” id. § 33.2-1216(3)—while others are allowed with
a permit, see, e.g., id. § 33.2-1208.
Section 1224 forbids “[s]igns or advertisements placed within the limits of the
highway” as “a public and private nuisance.” Id. § 33.2-1224. Any person posting a sign
or advertisement within the limits of any highway is subject to a $100 civil penalty per
occurrence. The Commissioner or his representative also may seek to enjoin a recurring
violator. Section 1224 does not apply to signs regulated under other provisions of the
statutory scheme.
Section 1204 exempts certain categories of signs and advertisements from some, but
not all, of the outdoor advertising regulations. In 2018, Virginia amended this section to
explicitly state that six of the listed categories of signs are exempt from Section 1224. See
id. § 33.2-1204(5), (6), (12), (13), (15), (19).
B.
BTA operates in a five square mile area of Fairfax County. As part of its business,
BTA posts signs advertising its clients’ properties, often placing those signs within the
limits of the highway. In April 2012, the Virginia Department of Transportation notified
4
BTA that it was violating Section 1224. After further warnings, the Department of
Transportation began fining BTA for its continued violations. Between April 2012 and
March 2013, the Department of Transportation fined BTA on at least eleven occasions.
In March 2013, Virginia’s Commissioner of Highways signed a cooperative
agreement with the Fairfax County Board of Supervisors authorizing the latter to enforce
Section 1224. Pursuant to that Agreement, the Board directed the County to establish a
sign removal program and begin enforcing Section 1224 on a designated subset of roads in
Fairfax County. For the first three years of the program, the County removed prohibited
signs but issued no fines. In 2016, the County adopted the Department of Code Compliance
Illegal Right-of-Way Signage Inspection and Enforcement Program Policy (DCC Policy).
In accord with the DCC Policy, the County began sending warning letters to repeat
offenders and, if violations persisted, issuing citations fining those determined to be
“egregious violators.”
BTA was an egregious violator of Section 1224. From March to October 2016, the
County fined BTA 89 times, and from May to October of the same year BTA received
approximately 21% of all fines issued. In December 2016, the Board sued BTA in Virginia
state court for payment of outstanding fines and exercised its delegated authority under
Section 1224 to seek an injunction barring BTA from further violations. BTA responded
with a counterclaim raising constitutional defenses but subsequently dismissed its
counterclaim and initiated this federal suit. 1
1
The state court has stayed its proceedings during the pendency of this action.
5
C.
BTA sued the County and Virginia’s Commissioner of Highways in federal court,
seeking declaratory and injunctive relief as well as damages and fees pursuant to 42 U.S.C.
§§ 1983 and 1988. In April 2018, while this suit was pending in the district court, the
Virginia legislature amended Section 1204 to clarify that six categories of signs are exempt
from Section 1224. The County and the Commissioner separately moved to dismiss, and
the district court granted their motions. The court held that Section 1224—considered with
the exceptions in Section 1204 as amended in 2018—was not an unconstitutional
restriction on speech and was not unconstitutionally vague. 2 Regarding pre-amendment
enforcement, the court determined that the County was susceptible to damages under
Section 1983 for its policy of enforcing Section 1224 but that dismissal was warranted
because the pre-amendment statutory scheme could be construed to be constitutional. The
court dismissed BTA’s prior restraint claim as unripe and dismissed its selective
enforcement claim for failure to adequately plead discriminatory intent. The County
subsequently sought an award of attorney’s fees under 42 U.S.C. § 1988, which the district
court denied.
BTA and the County each appealed to this Court. We review de novo orders of
dismissal pursuant to Fed. R. Civ. P. 12(b)(1) and (6) and orders granting summary
2
Finding no genuine dispute of material fact on these issues, the district court
granted judgment for the defendants and denied BTA’s motion for summary judgment and
injunctive relief. BTA was not denied a reasonable opportunity to present all pertinent
material, so its procedural quibble with this ruling fails. See Fed. R. Civ. P. 12(d); Herbert
v. Saffell, 877 F.2d 267, 270 (4th Cir. 1989).
6
judgment. See Garnett v. Remedi Seniorcare of Va., LLC, 892 F.3d 140, 142 (4th Cir.
2018) (Rule 12(b)(6)); Demetres v. E.W. Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015)
(Rule 12(b)(1)); Ballengee v. CBS Broad., Inc., 968 F.3d 344, 349 (2020) (summary
judgment). We review for abuse of discretion a district court’s decision to grant or deny
attorney’s fees under Section 1988. Mercer v. Duke Univ., 401 F.3d 199, 203 (4th Cir.
2005).
II.
Before we consider the merits of BTA’s constitutional challenges we must address
two threshold questions the defendants raised below and reiterate on appeal: standing and
ripeness. Both are jurisdictional. See Sansotta v. Town of Nags Head, 724 F.3d 533, 548
(4th Cir. 2013); Pye v. United States, 269 F.3d 459, 466 (4th Cir. 2001). Accordingly, our
obligation of ensuring jurisdiction requires us to first examine those preliminary questions.
See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986).
A.
Standing to sue is a doctrine rooted in the Constitution’s limitation of federal-court
jurisdiction to actual cases and controversies. See U.S. Const. art. III, § 2; Raines v. Byrd,
521 U.S. 811, 818 (1997). To establish so-called Article III standing, a plaintiff must show
that he has “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial
decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). These requirements
ensure that a plaintiff invoking the jurisdiction of a federal court can show “a personal stake
7
in the outcome of the controversy.” Gill v. Whitford, 138 S. Ct. 1916, 1929 (2018) (internal
quotation marks omitted).
The defendants primarily argue that BTA cannot show that a favorable decision
would redress its injury because, even if the present challenge to Section 1224 were to
succeed, the Commissioner could enforce other Virginia signage statutes that allegedly
forbid BTA from posting its signs where it currently does. 3 We disagree. BTA has
standing to challenge Section 1224 because the Commissioner and the County have
actually enforced that statute against it, citing Section 1224 as the only basis for removing
BTA’s signs and levying fines. The other provisions which the Commissioner claims could
be enforced against BTA have not been. The hypothetical possibility that the
Commissioner could choose in his discretion to enforce other regulations to prevent BTA
ultimately from posting its signs does not render the claims advanced in this case, regarding
the only regulation actually enforced against BTA, unredressable.
These facts distinguish the cases on which the Commissioner relies. In the sign-
ordinance cases the Commissioner cites, favorable judicial decisions could not redress the
plaintiffs’ injuries because the plaintiffs challenged only some of the grounds on which the
cities denied their permit applications, leaving other valid grounds for the denials
unchallenged. See Covenant Media of S.C., LLC v. City of North Charleston, 493 F.3d
3The County is empowered to enforce only Section 1224; the Agreement does not
delegate authority to the County to enforce any other state signage statutes. Accordingly,
the County’s standing argument depends on the Commissioner’s ability to enforce other
statutes independent of any restraint upon the County.
8
421, 430 (4th Cir. 2007); Advantage Media, LLC v. City of Eden Prairie, 456 F.3d 793,
797–798, 801 (8th Cir. 2006). The plaintiff’s claim in Doe v. Virginia Department of State
Police failed the redressability requirement because, even if the court ordered the defendant
to implement the procedures the plaintiff sought or to grant her entry to the relevant
property, under the state statutory scheme she would still need permission from a state
court before she could enter the property, rendering it “purely speculative” whether any
action by this Court would redress her injury. 713 F.3d 745, 757 (4th Cir. 2013). The Doe
plaintiff’s claims also lacked traceability and redressability because she had not attempted
the lawful means of entering the property. Id. at 756. Therefore, it was speculative whether
she would be denied and whether action by this Court would have any effect on her ability
to enter the property. Id.That situation is quite unlike this case, where BTA posted its signs and the
Commissioner and the County removed them, citing Section 1224 as the only ground for
removal. On appeal the Commissioner notes that signs require permits, see Va. Code Ann.
§ 33.2-1208, but no one removed BTA’s signs for lack of a permit, nor does anyone argue
that the Commissioner could grant a permit in disregard of Section 1224’s prohibition on
signs within the limits of any highway.
There can be little doubt that were BTA to prevail, the court could award relief that
would alleviate the particular harm it has suffered: enforcement of Section 1224 to remove
its signs and impose penalties. For purposes of assessing the third prong of the standing
inquiry, that is all that is required.
9
B.
Having found that BTA has standing, we turn to the ripeness of its claims. The
“basic rationale” of the ripeness doctrine is “to prevent the courts, through avoidance of
premature adjudication, from entangling themselves in abstract disagreements.” Abbott
Labs. v. Gardner, 387 U.S. 136, 148 (1967); see also Nat’l Park Hosp. Ass’n v. Dep’t of
Interior, 538 U.S. 803, 808 (2003) (noting the doctrine’s constitutional and prudential
roots). “A claim is not ripe for adjudication if it rests upon contingent future events that
may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523
U.S. 296, 300 (1998) (internal quotation marks omitted).
We have little difficulty rejecting the Commissioner’s argument that BTA’s claims
are unripe because it has not availed itself of the permitting and licensure provisions in
Virginia law. See Va. Code Ann. §§ 33.2-1205, 1208, 1216(7). Those provisions do not
impose an exhaustion requirement, and their hypothetical availability is tangential to
whether BTA’s claims regarding the actual enforcement of Section 1224 against it are
“appropriate for judicial resolution at this time.” Abbott Labs., 387 U.S. at 149. The
defendants’ actions enforcing Section 1224 by removing BTA’s signs and imposing fines
are “final and not dependent on future uncertainties” that would hamper our review. Miller
v. Brown, 462 F.3d 312, 319 (4th Cir. 2006).
There is one exception. The district court correctly found BTA’s prior restraint
claim unripe because it is predicated on an injunction that has not been issued. The Board
sued BTA in Virginia state court pursuant to Section 1224’s authorization to “enjoin any
recurring violator,” which BTA alleges is an unconstitutional prior restraint on speech. A
10
prior restraint is a legal order forbidding speech “issued in advance of the time that [the
speech will] occur.” Alexander v. United States, 509 U.S. 544, 550 (1993) (internal
quotation marks omitted). While “[t]emporary restraining orders and permanent
injunctions . . . are classic examples of prior restraints,” id., until an order forbidding
speech issues, no such restraint has yet been imposed. Because the state court has not
awarded the Board the injunction it seeks (and the proceedings have been stayed pending
resolution of this action), BTA’s prior restraint claim “rests upon contingent future events
that may not occur as anticipated, or indeed may not occur at all.” Texas, 523 U.S. at 300(internal quotation marks omitted); see also Woodall v. Reno, 47 F.3d 656, 658 (4th Cir.
1995) (“[W]e will not assume that a court would issue an injunction in violation of the
well-established prior restraint doctrine.”). Such a claim is not ripe for adjudication.
III.
The focus of BTA’s suit is its request that the Commissioner and his delegees be
prospectively enjoined from enforcing Section 1224, which it contends is constitutionally
infirm. See Ex parte Young, 209 U.S. 123 (1908) (permitting injunctive relief against a
state officer to restrain violations of federal law). BTA argues that Section 1224 violates
its First Amendment right to freedom of speech because it is a content-based restriction on
speech that is not narrowly tailored to serve a compelling governmental interest. It also
argues that Section 1224 is unconstitutionally vague. For the reasons explained below,
both of BTA’s arguments fall short.
11
A.
The First Amendment, made applicable to the States (and local governments vested
with state authority) by the Fourteenth Amendment, prohibits enactments that abridge the
freedom of speech. Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). “Content-based
laws—those that target speech based on its communicative content—are presumptively
unconstitutional and may be justified only if the government proves that they are narrowly
tailored to serve compelling state interests.” Id. Laws that are content neutral are “subject
to a lower level of scrutiny.” Id. at 166.
BTA does not allege that Section 1224 is unconstitutional when considered in
isolation. Rather, BTA contends that Section 1224 becomes a content-based restriction on
speech when the exceptions in Section 1204 apply to limit its scope. After the 2018
amendment, Section 1204 exempts six categories of signs from Section 1224’s general
prohibition on signs within the limits of the highway. See Va. Code Ann. § 33.2-1204(5),
(6), (12), (13), (15), (19). Five relate exclusively to government speech, as BTA admits,
and therefore pose no First Amendment problem. Id. § 33.2-1204(5), (6), (12), (13), (15).
“The Free Speech Clause restricts government regulation of private speech; it does not
regulate government speech.” Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009);
see also Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 553 (2005) (“[T]he Government’s
own speech . . . is exempt from First Amendment scrutiny.”). Thus, the government is
“entitled to say what it wishes, and to select the views that it wants to express.” Summum,
555 U.S. at 467 (internal quotation marks omitted). While most of the five exemptions
unquestionably draw distinctions based on the message conveyed—for example, warning
12
signs, signs relating to Red Cross emergency stations, and historical markers—the First
Amendment is not offended by this preferential treatment because the government is the
source of the message. See Reed, 576 U.S. at 175 (Alito, J., concurring) (“[G]overnment
entities may . . . erect their own signs consistent with the principles that allow
governmental speech,” including “all manner of signs to promote safety, as well as
directional signs and signs pointing out historic sites and scenic spots.”).
The only remaining exception to Section 1224 in Section 1204 exempts “signs
containing advertisements or notices that have been authorized by a county and that are
securely affixed to a public transit passenger shelter that is owned by that county.” Va.
Code Ann. § 33.2-1204(19). This exemption is content neutral and therefore not subject
to strict scrutiny. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994) (“[L]aws
that confer benefits or impose burdens on speech without reference to the ideas or views
expressed are in most instances content neutral.”). BTA concedes that this exception is
facially neutral and, although it notes the discretion vested in counties to authorize transit
shelter advertisements, does not make any allegation about the manner in which the County
exercises its discretion.
Determining that a restriction is content neutral does not end the First Amendment
inquiry, as such regulations are still subject to “an intermediate level of scrutiny.” Turner,
512 U.S. at 642. Nevertheless, a wide body of jurisprudence upholds content-neutral “time,
place, and manner” restrictions that are “sufficiently justified and narrowly enough drawn.”
Wall Distribs., Inc. v. City of Newport News, 782 F.2d 1165, 1168 (4th Cir. 1986). “[E]ven
in a public forum”—where First Amendment interests are at their zenith—“the government
13
may impose reasonable restrictions on the time, place, or manner of protected speech,
provided the restrictions ‘are justified without reference to the content of the regulated
speech, that they are narrowly tailored to serve a significant governmental interest, and that
they leave open ample alternative channels for communication of the information.’” Ward
v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. for Creative
Non–Violence, 468 U.S. 288, 293 (1984)).
Section 1224’s ban on signs within the limits of any highway, as modified by the
transit shelter exception in Section 1204(19), satisfies the test for content-neutral time,
place, and manner restrictions. 4 The proffered governmental interests—ensuring driver
safety and preserving aesthetic considerations on the highways—are undoubtedly
significant under our precedent. See Arlington Cnty. Republican Comm. v. Arlington
County, 983 F.2d 587, 594 (4th Cir. 1993) (“promot[ing] aesthetics and traffic safety” are
“substantial” government interests underlying regulation of temporary signage); see also
Ross v. Early, 746 F.3d 546, 555 (4th Cir. 2014) (“maintaining the safety, order, and
accessibility of its streets and sidewalks” is a substantial governmental interest justifying
leafletting restriction (internal quotation marks omitted)); Am. Legion Post 7 v. City of
Durham, 239 F.3d 601, 609 (4th Cir. 2001) (“[A] community’s interest in preserving its
aesthetic character is indeed a ‘substantial interest.’”). The prohibition on private signage
within the limits of any highway unless securely affixed to a county-owned transit shelter
4
Because the statutes satisfy the more speech-protective standard, we need not
decide how to characterize areas within the limits of the highway for purposes of First
Amendment forum analysis.
14
promotes these interests by “keep[ing] the highways free of visual clutter, distracting
images, and physical hazards” and does so “more effectively than plausible alternatives.”
Bruce & Tanya & Assocs., Inc. v. Bd. of Supervisors of Fairfax Cnty., 355 F. Supp. 3d 386,
409 (E.D. Va. 2018). The Commonwealth is not required to choose the “least restrictive
or least intrusive means” of accomplishing its purpose but need only show, as it has here,
that its regulation “promotes a substantial government interest that would be achieved less
effectively absent the regulation.” Ward, 491 U.S. at 798–799 (internal quotation marks
omitted).
Finally, Sections 1224 and 1204 “leave open ample alternative channels” for BTA
to communicate its message. Id. at 802. As the district court observed, the statutes govern
only BTA’s ability to post signs on government-owned land within the limits of a highway.
They do not restrict BTA from “post[ing] advertisements on private land or in various
forms of media,” applying to display signs on public transit shelters, or seeking a permit to
display advertisements “visible from” a highway. Bruce & Tanya, 355 F. Supp. 3d at 409
(citing Va. Code Ann. §§ 33.2-1204(19), 33.2-1205, 33.2-1208). BTA questions whether
these options would be satisfactory alternatives to placing signs within the limits of the
highway, but the available alternatives “need not be the speaker’s first or best choice or
provide the same audience or impact for the speech.” Ross, 746 F.3d at 559 (internal
quotation marks and alterations omitted). We agree with the district court that, while the
statutes may impact BTA’s preferred method of advertising, they leave open many
reasonable means by which BTA can advertise its properties. As a result, Section 1224
does not unconstitutionally restrict BTA’s speech.
15
B.
BTA also argues that Section 1224 is unconstitutionally vague because it does not
define the phrase “within the limits of any highway.” Absent a definition of this critical
phrase, BTA contends, no one “reviewing th[e] statute could be certain what conduct is
proscribed.” BTA Opening Br. at 22.
“A fundamental principle in our legal system is that laws which regulate persons or
entities must give fair notice of conduct that is forbidden or required.” FCC v. Fox
Television Stations, Inc., 567 U.S. 239, 253 (2012). This precept is usually traced to our
Constitution’s guarantee of due process; when speech is regulated, the First Amendment
buttresses that requirement “to ensure that ambiguity does not chill protected speech.” Id.at 253–254; see also Reno v. Am. Civil Liberties Union, 521 U.S. 844, 871–872 (1997).
Yet due process demands a measure of clarity, not exactitude. Thus, a statute is too vague
to be enforced consistent with due process only if it “fails to provide a person of ordinary
intelligence fair notice of what is prohibited, or is so standardless that it authorizes or
encourages seriously discriminatory enforcement.” Fox Television, 567 U.S. at 253(internal quotation marks omitted).
Section 1224 clears this standard. At the outset, we note that the Code defines
“highway.” See Va. Code Ann. § 33.2-1200(B). And BTA acknowledges that the
Commonwealth uses the phrase “limits of the highway” to refer to the right-of-way upon
which the highway sits. See J.A. 32 (Agreement authorizing the Board “to . . . remov[e]
any signs or advertising located within the rights-of-way, in violation of [Section 1224]”).
Indeed, BTA understands the phrase to carry this meaning, as its complaint alleges that
16
“many” of its signs are “posted immediately adjacent to highways and are often within the
territorial limits of such highways.” J.A. 16. BTA nevertheless contends that the phrase
retains some ambiguity.
We agree with the district court that even if the phrase leaves room for debate about
precisely how close a sign may be to the edge of the roadway, it is “not rendered
unconstitutional simply because the legislature used descriptive rather than mathematical
terms.” Bruce & Tanya, 355 F. Supp. 3d at 412. The Supreme Court on more than one
occasion has rejected vagueness challenges against enactments employing words or
phrases at least as imprecise as “within the limits of any highway,” if not more so. See
Grayned v. City of Rockford, 408 U.S. 104, 111 (1972) (rejecting vagueness challenge to
ordinance that prohibited activity “adjacent to” a school); Cox v. Louisiana, 379 U.S. 559,
568 (1965) (holding that a statute criminalizing demonstrations “in or near” a courthouse
was not unconstitutionally vague). As the district court correctly concluded, “an ‘ordinary
person exercising ordinary common sense can sufficiently understand’ the phrase,”
particularly given the context in which it is used and the harm Section 1224 is designed to
mitigate. Bruce & Tanya, 355 F. Supp. 3d at 413 (quoting Wag More Dogs, LLC v. Cozart,
680 F.3d 359, 371–372 (4th Cir. 2012)). “[P]erfect clarity and precise guidance have never
been required even of regulations that restrict expressive activity.” Ward, 491 U.S. at 794.
For these reasons, BTA’s vagueness challenge fails.
IV.
We turn now to the claims BTA advances solely against the County. First, BTA
seeks to hold the County liable in damages for the alleged unconstitutionality of Section
17
1224 as modified by the pre-amendment version of Section 1204. Second, BTA contends
that the County selectively enforced Section 1224 in violation of the Equal Protection
Clause. The district court dismissed both claims. Before addressing either, we must
examine the statutory vehicle by which BTA has advanced its claims, 42 U.S.C. § 1983.
A.
Section 1983 creates a remedial cause of action against any “person” acting “under
color of any statute, ordinance, regulation, custom, or usage, of any State” who deprives
another of “any rights, privileges, or immunities secured by the Constitution and laws.” 42
U.S.C. § 1983. “Through [Section] 1983, Congress sought to give a remedy to parties
deprived of constitutional rights, privileges and immunities by an official’s abuse of his
position.” Hafer v. Melo, 502 U.S. 21, 27 (1991) (internal quotation marks omitted).
The Supreme Court has held that “municipalities and other local government units
[are] included among those persons to whom [Section] 1983 applies.” Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 690 (1978). Under the doctrine announced in Monell, a local
government entity can be sued under Section 1983 if “the action that is alleged to be
unconstitutional implements or executes a policy statement, ordinance, regulation, or
decision officially adopted and promulgated by that body’s officers.” Id. A local
governing body “cannot be held liable solely because it employs a tortfeasor”; instead, the
constitutional harm must be the direct result of “action pursuant to official municipal policy
of some nature.” Id. at 691 (emphasis omitted); see also Pembaur v. City of Cincinnati,
475 U.S. 469, 480 (1986) (“[R]ecovery from a municipality is limited to . . . acts which the
municipality has officially sanctioned or ordered.”). This “official policy requirement” is
18
intended to “make clear that municipal liability is limited to action for which the
municipality is actually responsible.” Pembaur, 475 U.S. at 479. Thus, “municipal
liability under [Section] 1983 attaches where—and only where—a deliberate choice to
follow a course of action is made from among various alternatives by city policymakers.”
City of Canton v. Harris, 489 U.S. 378, 389 (1989) (internal quotation marks omitted).
Here, the alleged unconstitutional acts were without question undertaken pursuant
to a formal directive from the Board: after entering into the Agreement with the
Commissioner, the Board ordered the County to adopt an enforcement program, which
ultimately took the form of the DCC Policy. But the County contends that it cannot be
held responsible for the enforcement program in a Section 1983 claim because the program
merely enforces state law. By implementing its policy, the County argues, it has acted as
an agent of the Commissioner, taking actions pursuant to a statutory mandate over which
it lacks the degree of control necessary for Monell liability.
We have not definitively addressed whether Monell liability can be predicated on a
local government’s policy of enforcing state law. 5 The majority of our sister circuits to
consider the question have suggested that a local government can be subjected to Monell
liability if it makes an independent choice to enforce or follow parameters set by state law,
rather than being obliged to do so. See Vives v. City of New York, 524 F.3d 346, 353 (2d
5
In Bockes v. Fields, we held that a county Board of Social Services could not be
subject to Monell liability for a firing that violated the Fourteenth Amendment because it
acted pursuant to criteria and procedures required by the State Board of Social Services.
999 F.2d 788, 791 (4th Cir. 1993). We concluded that the county Board had not exercised
its own policymaking authority when it applied standards mandated by the State Board in
firing the plaintiff. Id.19
Cir. 2008); Cooper v. Dillon, 403 F.3d 1208, 1222–1223 (11th Cir. 2005); Garner v.
Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993); Evers v. Custer County, 745 F.2d
1196, 1203–1204 (9th Cir. 1984). But see Surplus Store & Exch., Inc. v. City of Delphi,
928 F.2d 788, 791–792 (7th Cir. 1991).
We find Vives instructive. There the City of New York chose to enforce a New
York criminal statute that was later found to infringe the First Amendment. 524 F.3d at
348. City police officers arrested and held Vives for allegedly violating the state statute,
but the district attorney declined to prosecute. Id. at 348–349. Vives sued the City under
Section 1983 for violating his First Amendment speech rights. The City argued it was not
subject to Monell liability because a “municipality does not implement or execute a policy
officially adopted and promulgated by its officers when it merely enforces the Penal Law
of the State that created it.” Id. at 350.
The Second Circuit rejected the City’s maximal position. The court began from the
premise that “[t]he word ‘policy’ generally implies a course of action consciously chosen
from among various alternatives.” Id. (quoting Oklahoma City v. Tuttle, 471 U.S. 808, 823
(1985)); see also Spell v. McDaniel, 824 F.2d 1380, 1386 (4th Cir. 1987). The Vives court
reasoned that “[f]reedom to act is inherent in the concept of ‘choice,’” and a state law
“mandating enforcement” by local government officials cannot be considered the product
of a conscious choice. Vives, 524 F.3d at 353. Local governments therefore “cannot be
liable under Monell in th[at] circumstance.” Id. By contrast, if a local government entity
“decides to enforce a statute that it is authorized, but not required, to enforce, it may have
created a . . . policy” for which it can be liable. Id. In sum, whether a local government
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entity’s policy of enforcing a state statute renders it susceptible to Monell liability turns on
“whether a municipal policymaker has made a meaningful and conscious choice that
caused a constitutional injury.” Id. at 351.
B.
Having considered the parameters of Section 1983, we turn to BTA’s claim that the
County is liable for enforcing an unconstitutional state statute. BTA argues that Section
1224 violates the First Amendment not by itself but by virtue of exceptions to its coverage
detailed in Section 1204. According to BTA, before the Virginia legislature amended
Section 1204 in 2018, that statute excepted large swaths of signage from Section 1224
based on their content. BTA seeks to hold the County liable in damages for enforcing this
allegedly unconstitutional statutory couplet.
We must first identify the relevant policy. See Harris, 489 U.S. at 385 (“[O]ur first
inquiry in any case alleging municipal liability under [Section] 1983 is the question
whether there is a direct causal link between a municipal policy or custom and the alleged
constitutional deprivation.”). The relevant County policy consists of the Agreement
between the Commissioner and the Board and the DCC Policy created pursuant to that
Agreement. The Agreement states that the Commissioner “desires the Board’s assistance”
in removing signs from the highways in Fairfax County and that the Board, after a public
hearing on the matter, “expressed its desire and agreement” to enforce Section 1224 and
collect the fines provided therein. J.A. 32. Accordingly, in the Agreement the
Commissioner, pursuant to Va. Code Ann. § 33.2-1225, “authorize[d] the Board” to act as
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his agent “for the purpose of removing any signs or advertising located within the rights-
of-way in violation of [Section 1224]” and collecting the related fines. J.A. 32.
The County can be held liable for its policy of enforcing Section 1224 because it
consciously chose to enforce that particular state statute after requisite deliberation. See
Vives, 524 F.3d at 353. Section 1225 authorizes—but does not require—Fairfax County
to enter into a cooperative agreement with the Commissioner to enforce Section 1224. See
Va. Code Ann. § 33.2-1225(A). Likewise, the Agreement authorizes but does not mandate
the County to enforce Section 1224 and sets parameters on its enforcement. Fairfax
County’s authority to enforce Section 1224 required the Board’s acquiescence; it was under
no obligation to enforce this state statute. In other words, the decision to enter the
Agreement required county policymakers to make a conscious choice from among the
various alternatives, including the alternative not to enforce the statute at all. As a result,
the policy of enforcing Section 1224 is one “for which the [County] is actually responsible”
in accord with the principles of Monell liability. Pembaur, 475 U.S. at 479; see also Harris,
489 U.S. at 390; Vives, 524 F.3d at 353; Spell, 824 F.2d at 1386.
The County’s policy, however, differs from the Commonwealth’s policy; although
the two overlap, they are not coextensive. The Commonwealth is responsible for applying
the entire Code to all outdoor advertising. The County, by contrast, has decided to enforce
only Section 1224, to enforce it only on certain roads and certain days of the week, and to
fine only egregious violators. J.A. 498–499. The County’s policy does not incorporate
other provisions of Virginia’s sign regulations but is limited to signs within the limits of
highways. Perhaps for that reason, the County’s policy does not incorporate Section 1204,
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which excepts certain categories of outdoor advertising from particular provisions of
Virginia’s sign regulations “if securely attached to real property or advertising structures.”
Va. Code Ann. § 33.2-1204; see, e.g., id. § 33.2-1204(1) (exempting advertisements
“securely attached to a place of business or residence”), (2) (exempting signs “on any
farm”), (14) (exempting signs “upon property warning the public against hunting, fishing,
or trespassing thereon”). Neither Section 1225 nor the Agreement mention Section 1204,
and although the DCC Policy explicitly lists exceptions to enforcement, it does not include
the exceptions in Section 1204 or otherwise purport to apply that statute.
BTA’s complaint does not allege any other source of County policy regarding the
enforcement of Section 1224 or any custom outside the written policy. But BTA contends
that the County’s policy must implicitly incorporate Section 1204’s exceptions in order to
comply with state law. The County persuasively explains how its enforcement policy
accords with the broader scheme of Virginia sign regulation. But more fundamentally, our
question is not whether the County is complying with state law but whether the policy it
voluntarily adopted and follows—whether in step with other state regulations or not—
caused the alleged infringement of BTA’s constitutional rights. The County did not adopt
the exceptions in the pre-amendment version of Section 1204 into its policy, therefore the
County cannot be liable for harms allegedly caused by those exceptions.
The target of BTA’s First Amendment claim is Virginia’s sign regulations.
Although the County can be liable for enforcing a state regulation it has voluntarily adopted
as its own, it cannot be held liable for state statutes it has not consciously adopted into its
own policy. Because BTA has not alleged a link between the County’s policy of enforcing
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Section 1224 and its alleged injury, BTA’s Section 1983 action against the County for
violation of its First Amendment rights fails.
C.
Separate from its challenge to the constitutionality of the Virginia statutes, BTA
also alleges that the County selectively enforced its policy against BTA in violation of the
Equal Protection Clause of the Fourteenth Amendment. To state a claim, BTA must plead
facts that, accepted as true, would allow the court to draw the reasonable inference that
“the government’s enforcement process ‘had a discriminatory effect and that it was
motivated by a discriminatory purpose.’” Cent. Radio Co. v. City of Norfolk, 811 F.3d 625,
634–635 (4th Cir. 2016) (quoting Wayte v. United States, 470 U.S. 598, 608 (1985)).
Discriminatory purpose implies more than “awareness of consequences”; rather, a plaintiff
must show that the decisionmaker “selected or reaffirmed a particular course of action at
least in part ‘because of’ . . . its adverse effects upon an identifiable group.” Wayte, 470
U.S. at 610 (internal quotation marks omitted); cf. Village of Willowbrook v. Olech, 528
U.S. 562 (2000) (per curiam) (affirming viability of class-of-one equal protection claim).
Our precedent has recognized several factors as probative of discriminatory intent,
including:
(1) evidence of a “consistent pattern” of actions by the decisionmaking body
disparately impacting members of a particular class of persons; (2) historical
background of the decision, which may take into account any history of
discrimination by the decisionmaking body or the jurisdiction it represents;
(3) the specific sequence of events leading up to the particular decision being
challenged, including any significant departures from normal procedures;
and (4) contemporary statements by decisionmakers on the record or in
minutes of their meetings.
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Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 819 (4th Cir. 1995); see also Cent.
Radio, 811 F.3d at 635.
We agree with the district court that BTA failed to plead sufficient facts showing
that the County was motivated by a discriminatory intent. The facts alleged in BTA’s
complaint primarily concern discriminatory effect. But a disparate impact standing alone
does not demonstrate discriminatory intent, see Sylvia Dev. Corp., 48 F.3d at 823, and a
few instances of disparate impact in enforcement do not amount to a consistent pattern.
BTA does not allege any significant deviation from normal procedures or indicting
statements by decisionmakers. BTA’s allegations that citizen complaints spurred the
Commissioner’s enforcement against it and that a Board member called a BTA officer to
demand compliance with the law before the County began issuing penalties do not tend to
show that the County intentionally, much less “irrationally or arbitrarily,” treated BTA
differently from similarly situated parties. Tri Cnty. Paving, Inc. v. Ashe County, 281 F.3d
430, 440 (4th Cir. 2002). The same goes for the allegation that County training materials
included photographs of BTA’s signs as examples of Section 1224 violations. We agree
with the district court that these allegations are, at best, consistent with a discriminatory
scheme but ultimately fall short of nudging BTA’s selective enforcement claim “across the
line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007);
see also Bruce & Tanya, 355 F. Supp. 3d at 415.
V.
Lastly, we consider the County’s cross-appeal of the denial of its request for
attorney’s fees and costs under 42 U.S.C. § 1988.
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Section 1988 gives courts discretion to award attorney’s fees and costs to a
“prevailing party” in various kinds of civil rights cases, including suits brought under
Section 1983. 42 U.S.C. § 1988(b). A court may award attorney’s fees to a prevailing
defendant but only “upon a finding that the plaintiff’s action was frivolous, unreasonable,
or without foundation.” Fox v. Vice, 563 U.S. 826, 833 (2011) (quoting Christiansburg
Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)). A district court’s determination in this
regard is entitled to “great deference.” EEOC v. Great Steaks, Inc., 667 F.3d 510, 517 (4th
Cir. 2012).
As an initial matter, we reject the County’s assertion that the district court
erroneously required it to show that BTA’s claims were “tantamount to bad faith.” County
Opening & Response Br. at 24. The district court quoted and applied the correct standard,
and its citation to a Sixth Circuit decision does not indicate otherwise when considered in
context. See Bruce & Tanya & Assocs. v. Bd. of Supervisors of Fairfax Cnty., No. 1:17-
cv-1155 (LMB/TCB), 2019 WL 7900792, at *3 (E.D. Va. Jan. 17, 2019) (quoting
“frivolous, unreasonable, or without foundation” standard from Fox v. Vice); see also
Riddle v. Egensperger, 266 F.3d 542, 547 (6th Cir. 2001) (acknowledging that “[a]
prevailing defendant should only recover upon a finding by the district court that the
plaintiff’s action was frivolous, unreasonable, or without foundation, even though not
brought in subjective bad faith” (internal quotation marks omitted)).
The district court ruled that BTA’s selective enforcement claim did not warrant fee
shifting because it “was not so groundless as to constitute an abuse of the judicial process.”
Bruce & Tanya, 2019 WL 7900792, at *3 (internal quotation marks omitted). The court
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noted that it denied the County’s first motion to dismiss the selective enforcement claim
and that the state court’s rejection of a similar claim did not prove that it was frivolous.
We discern no abuse of discretion in this ruling. On appeal the County asserts that its
success on BTA’s other claims against it also justified a fee award, but that contention does
not strengthen its argument. BTA’s First Amendment claim against the County, although
not successful, was not frivolous, unreasonable, or without foundation. The district court
did not abuse its discretion in denying the County’s fee request.
* * *
BTA has failed to establish that enforcement of Virginia’s signage regulations
caused it harm of a constitutional dimension. Though it prevailed below, the County has
not established that the claims BTA raised were frivolous. We therefore affirm both the
district court’s judgment dismissing BTA’s claims and its judgment denying the County’s
request for attorney’s fees.
AFFIRMED
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