Chapin Furniture Outlet Inc. v. Town of Chapin , 252 F. App'x 566 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-2129
CHAPIN FURNITURE OUTLET INCORPORATED,
Plaintiff - Appellant,
versus
TOWN OF CHAPIN, SOUTH CAROLINA, a
municipality; STANLEY SHEALY, Mayor of Town of
Chapin; ADRIENNE THOMPSON, Zoning
Administrator of Town of Chapin,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Margaret B. Seymour, District Judge.
(3:05-cv-01398-MBS)
Argued: September 28, 2007 Decided: October 30, 2007
Before WILKINSON and KING, Circuit Judges, and Frederick P. STAMP,
Jr., Senior United States District Judge for the Northern District
of West Virginia, sitting by designation.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Douglas M. Bragg, WINSTON & BRAGG, Wilsonville, Oregon, for
Appellant. Michael Stephen Pauley, VINTON D. LIDE & ASSOCIATES,
Lexington, South Carolina, for Appellees. ON BRIEF: D. Reece
Williams, III, CALLISON, TIGHE & ROBINSON, Columbia, South
Carolina, for Appellant. Vinton D. Lide, VINTON D. LIDE &
ASSOCIATES, Lexington, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Chapin Furniture Outlet Incorporated appeals from the district
court’s award of summary judgment to the Town of Chapin and two of
its officials (collectively, the “Town”) in this § 1983 proceeding.
See Chapin Furniture Outlet, Inc. v. Town of Chapin, No. 3:05-1398-
MBS (D.S.C. Sept. 20, 2006) (the “Opinion”).1 In May 2005, Chapin
Furniture initiated this action in the District of South Carolina
— seeking declaratory and injunctive relief, as well as nominal
and consequential damages — challenging the Town’s attempt to
apply a zoning ordinance against Chapin’s use of an electronic sign
outside its place of business. Chapin contends that the court
erred in ruling that the ordinance was content-neutral and did not
contravene the First Amendment. Because the Town has revised the
challenged ordinance to meet Chapin’s contentions and will not
reenact it, Chapin’s claims are moot. As explained below, we
vacate and remand for dismissal.
I.
A.
Chapin Furniture, which operates a furniture store in the
small town of Chapin, South Carolina, erected an electronic sign,
called an electronic message center (the “EMC”), outside its store
1
The district court’s Opinion is found at J.A. 614-24.
(Citations herein to “J.A. ____” refer to the Joint Appendix filed
by the parties in this appeal.)
2
in August 2004. The EMC is designed to flash or scroll messages
across its display screen. Chapin installed the EMC at the top of
a sign post it shared with other businesses, located on Chapin Road
between the Town’s only two traffic lights. The EMC is the largest
and tallest sign on the block and the only one of its type in the
Town.
When Chapin added the EMC to the sign post, the Town’s zoning
ordinance (the “Ordinance”) prohibited, inter alia, the
installation of:
Flashing signs, signs with flashing or reflective disks,
signs with flashing lights or lights of changing degree
of intensity or color or signs with electrically scrolled
messages (except government signs and signs which give
time and temperature information). If a time and
temperature sign alternates between a time message and a
temperature message it shall continuously show one
message a minimum of three (3) seconds in time before
switching to the other message.
Town of Chapin Zoning Ordinance § 901(G). The Ordinance required
those wishing to replace or construct signs to first obtain a
permit, but failed to specify a time within which the Town had to
act on a permit application. Id. at § 900.2. Although the Town
contends that the purpose of the restrictions spelled out in the
Ordinance was to protect the rural aesthetics of the Town and, as
a safety measure, to reduce distractions to drivers, the safety
purpose was not specified in connection with the sign restrictions.
On August 20, 2004, the Town’s Zoning Administrator informed
Chapin that its EMC was operating in a manner that violated the
3
Ordinance. On September 21, 2004, the Administrator sent a letter
to Chapin advising that its new sign was not in compliance with the
Ordinance and that the EMC manufacturer had “misrepresented the
nature of the sign when applying for a permit.” J.A. 150.2 The
Administrator concluded, after conferring with the Planning
Commission, the Town Council, the Mayor, and others, that the “sign
is unacceptable to everyone and an exception will not be made to
allow it to remain.” Id. Accordingly, the Administrator asked
Chapin to “[p]lease respect our ordinances and remove the sign.”
Id. Chapin failed to comply with her request to remove the sign.
Nearly six months later, on March 7, 2005, the Town’s Mayor
sent Chapin a second letter, again requesting that the sign be
removed. The Mayor asserted that the sign violated the Ordinance
because it did not “provide name and nature of store only . . . .
[and] the sign must not flash, change degree of intensity or
electrically scroll.” J.A. 398. Concluding that the sign
“violates all of the above,” the Mayor requested that Chapin “not
delay this matter any further” and indicated that it had “until
2
Chapin’s permit may have been obtained by misrepresentations
made by the EMC’s manufacturer about the nature of changes to the
sign. The Zoning Administrator contends that she was informed by
telephone that Chapin was simply going to add illumination to the
sign it already displayed. Because the Ordinance does not require
a permit for changes to an existing lawful sign that do not render
the sign in violation of the Ordinance, the Administrator
determined that Chapin did not need a permit for the changes
proposed. When the manufacturer indicated that he would like a
permit anyway, the permit fee was waived and Chapin secured the
permit that very day.
4
March 31, 2005 to have [its] sign removed.” Id. Chapin also
failed to comply with this request, but the Town took no action to
enforce the Ordinance — it never cited, fined, or charged Chapin
with violating the Ordinance, and never instituted any court
proceedings or otherwise forced the EMC into disuse. Chapin has
thus continued to use the EMC, but has modified the rate at which
messages are flashed and stopped scrolling messages across the
display screen.
B.
On May 12, 2005, Chapin filed a ten-count § 1983 complaint in
the District of South Carolina, asserting that the Ordinance
violated its rights under the First, Fifth, and Fourteenth
Amendments. The complaint requested declaratory and injunctive
relief, plus nominal and consequential damages. The crux of
Chapin’s position is the allegation that “[b]y enacting and
enforcing the regulation of [EMCs], the Town of Chapin is willfully
and unlawfully depriving [it], and other citizens and businesses in
Chapin, of their right of free expression through this form of
communication, as guaranteed by the First and Fourteenth
Amendments.” J.A. 13. Chapin contends that the First Amendment is
contravened because: (1) the Ordinance, in allowing the government
to utilize EMCs, and allowing the display of time and temperature
information only, impermissibly regulates speech based on content
and viewpoint; (2) the Town’s stated purpose of protecting rural
5
aesthetics fails to show an interest sufficient to permit it to
regulate speech in this manner; and (3) the entirety of the
Ordinance is an unconstitutional prior restraint, because its
permit scheme fails to provide a defined time period for the Town
to make permit decisions.
In February 2006, the Town filed a motion for summary judgment
and Chapin filed a cross-motion for partial summary judgment. On
June 22, 2006, at a hearing on the summary judgment motions, the
Town informed the district court that it was in the process of
revising the Ordinance. As a result, the court obtained
supplemental briefing on the mootness issue, which implicated its
jurisdiction to address the issues raised by Chapin.
On September 20, 2006, the district court issued the Opinion
from which this appeal is taken, awarding summary judgment to the
Town, denying Chapin’s request for partial summary judgment, and
concluding that Chapin’s claims were not moot. On the mootness
issue, the court explained that the Town had failed to meet its
“burden of demonstrating that [it] would not reenact the challenged
provisions of the Ordinance.” Opinion 4.3 On the merits, the
court concluded that the Ordinance was a content-neutral regulation
of speech that advanced legitimate governmental interests in
3
The Opinion indicates that “[t]he Town approved the revised
ordinance on July 18, 2006,” and the district court treated the
Revised Ordinance as final. Opinion 2. The Revised Ordinance,
however, was not actually enacted until November 7, 2006, after the
Town had conducted a public hearing.
6
preserving rural community aesthetics and avoiding traffic hazards.
Id. at 5-6. It also determined that the Ordinance did not
unconstitutionally restrict commercial speech or constitute a prior
restraint thereon. Id. at 8-9. For these reasons, the court
concluded that the “Ordinance passe[d] constitutional muster.” Id.
at 11. On October 18, 2006, Chapin filed its notice of appeal, and
we possess jurisdiction pursuant to 28 U.S.C. § 1291.
C.
On November 7, 2006, after the district court had awarded
summary judgment to the Town and Chapin had initiated this appeal,
the Town validly enacted its revised Ordinance (the “Revised
Ordinance”). The Revised Ordinance includes a Statement of Purpose
and Intent, i.e., that the “intent of these sign regulations” is to
preserve, inter alia, “the health, safety, welfare and general
well-being of the community’s citizens.” See Appellee’s Br.,
Addendum A, § 900.1. The Revised Ordinance now prohibits:
Flashing signs, signs with flashing or reflective disks,
signs with flashing lights or lights of changing degree
of intensity or color or signs with electrically scrolled
messages.
Id. at § 901(G). The Revised Ordinance does not contain an
exception for governmental signs or for signs displaying only time
and temperature information. In addition, it provides that, upon
receipt of all necessary information, permit requests will be acted
upon by the Town within two weeks of receipt. Id. at § 900.2.
Although Chapin fails to assert on appeal any First Amendment
7
concerns regarding the Revised Ordinance, it maintains that the
revisions were adopted in an effort to render its claims moot and
that the Ordinance could be reenacted at any time.4
II.
We review de novo a district court's award of summary
judgment, viewing the facts in the light most favorable to the
non-moving party. See Seabulk Offshore, Ltd. v. Am. Home Assur.
Co., 377 F.3d 408, 418 (4th Cir. 2004). We also review de novo a
district court’s ruling concerning subject matter jurisdiction,
including a ruling on mootness. See Covenant Media of S.C., LLC v.
City of N. Charleston, 493 F.3d 421, 428 (4th Cir. 2007)
(concluding that district court’s conclusion regarding Article III
jurisdiction is “legal conclusion that we review de novo”).
4
The Revised Ordinance does not permit scrolling messages and
Chapin mentions this point (briefly) only in its reply brief.
Chapin’s summary briefing on this issue provides an insufficient
basis for our review. See Fed. R. App. P. 28(a)(9)(A) (providing
that appellant’s brief must contain “contentions and the reasons
for them, with citations to the authorities and parts of the record
on which the appellant relies”). Assuming that Chapin preserved
this issue, its discontent with such a de minimus aspect of the
Revised Ordinance is not sufficient to preserve a live case or
controversy. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir.
1999) (concluding that “federal jurisdiction requires that a party
assert a substantial federal claim” (emphasis in original, internal
quotation marks omitted)); Davis v. Pak, 856 F.2d 648, 650 (4th
Cir. 1988) (concluding that mere assertion of constitutional
violation not sufficient to obtain jurisdiction because
jurisdiction requires party to assert substantial federal claim).
8
III.
Before assessing the merits of Chapin’s appellate contentions,
we must first determine whether its claims have been rendered moot
by the Town’s adoption of the Revised Ordinance. This process is
necessary because the Constitution limits our jurisdiction to the
adjudication of actual cases and controversies. See U.S. Const.
art. III, § 2; DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (per
curiam). “[A] case is moot when the issues presented are no longer
‘live’ or the parties lack a legally cognizable interest in the
outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969). The
requirement that a case involve an actual, ongoing controversy
extends throughout the pendency of an action. See Preiser v.
Newkirk, 422 U.S. 395, 401 (1975). To satisfy the Article III case
or controversy requirement, “[a] litigant must have suffered some
actual injury that can be redressed by a favorable judicial
decision.” Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70-71
(1983). When a case or controversy ceases to exist, the litigation
becomes moot and the federal court no longer possesses jurisdiction
to proceed. Id.A.
As a preliminary matter, Chapin maintains that we cannot
dismiss its appeal as moot because the Town has waived any mootness
contention in failing to file a cross-appeal, and in raising
mootness only in its response brief. This contention is without
9
merit, however, because mootness is a jurisdictional question that
we are obliged, if necessary, to address sua sponte. See
Friedman’s, Inc. v. Dunlap, 290 F.3d 191, 197 (4th Cir. 2002)
(noting that “the question of whether we are presented with a live
case or controversy is a question we may raise sua sponte” as
mootness goes to heart of Article III jurisdiction (internal
quotation marks omitted)); see also Mt. Healthy City Sch. Bd. of
Educ. v. Doyle, 429 U.S. 274, 278 (1977) (concluding that “we are
obliged to inquire sua sponte whenever a doubt arises as to the
existence of federal jurisdiction”). Accordingly, because we lack
jurisdiction “to decide questions that cannot affect the rights of
litigants in the case before [us],” we must address whether the
Town’s adoption of the Revised Ordinance has mooted Chapin’s case.
See North Carolina v. Rice, 404 U.S. 244, 246 (1971).
B.
1.
As spelled out above, Chapin has complained about multiple
aspects of the Ordinance. See supra Part I.B. However, the
Revised Ordinance undermines each of Chapin’s contentions. It
makes no exception for the government or for time and temperature
EMCs, and its Statement of Purpose and Intent confirms that the
“intent of these sign regulations” is to preserve, inter alia, “the
health, safety, welfare and general well-being of the community’s
citizens.” See Appellee’s Br., Addendum A, § 900.1. Moreover, the
10
Revised Ordinance requires the Town to approve or deny permit
applications within two weeks of obtaining the necessary
information. Id. at § 900.2. Because the challenged aspects of
the Ordinance have been remedied, Chapin’s claims for injunctive
and declaratory relief appear to be moot. See Coal. for the
Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d
1301, 1310 (11th Cir. 2000) (noting that “superseding statute or
regulation moots a case . . . to the extent that it removes
challenged features of the prior law”). Our review of the mootness
issue does not end here, however, because voluntary cessation of a
challenged activity does not automatically deprive us of
jurisdiction.
2.
As we recognized in Am. Legion Post 7 of Durham v. City of
Durham, “the mere amendment or repeal of a challenged ordinance
does not automatically moot a challenge to that ordinance.” 239
F.3d 601, 605 (4th Cir. 2001) (citing City of Mesquite v. Aladdin’s
Castle, Inc., 455 U.S. 283, 289 (1982)). Instead, we must assess
the likelihood that the Town will reenact the Ordinance. Id. at
606. This is so because “[a] case is not moot, and the exercise of
federal jurisdiction may be appropriate . . . if a party can
demonstrate that the apparent absence of a live dispute is merely
a temporary abeyance of a harm that is ‘capable of repetition, yet
evading review.’” Brooks v. Vassar, 462 F.3d 341, 348 (4th Cir
11
2006) (citing Mellen v. Bunting, 327 F.3d 355, 363-64 (4th Cir.
2003)). Nevertheless, a lawsuit challenging a statute that no
longer exists can become moot “even where re-enactment of the
statute at issue is within the power of the legislature.” Am.
Legion Post 7, 239 F.3d at 606. “Only if reenactment is not merely
possible but appears probable may we find the harm to be ‘capable
of repetition, yet evading review’ and hold that the case is not
moot.” Brooks, 462 F.3d at 348.
In its evaluation of the mootness issue, the district court
concluded that the Town had failed to meet its “burden of
demonstrating that [it] would not reenact the challenged provisions
of the Ordinance.” Opinion 4. Two important events have occurred
since the court’s Opinion of September 20, 2006. First, on
November 7, 2006, the Town enacted the Revised Ordinance, despite
having already been awarded summary judgment in this case. Second,
the Town assured this Court at oral argument that it will not
reenact the Ordinance. Accordingly, we are confident that the
Ordinance will not be reenacted and that any alleged harm to Chapin
is not “capable of repetition, yet evading review.” See Reyes v.
City of Lynchburg, 300 F.3d 449, 453 (4th Cir. 2002) (concluding
overbreadth claim moot where city repealed challenged ordinance,
promised not to reenact similar one, and there was “no reasonable
expectation” that city would reenact it). The claims made in
Chapin’s complaint are therefore now moot. Id. at 453 (agreeing
12
with lower court that case was “moot as to future application”
because City repealed ordinance and promised not to reenact similar
one).
C.
Chapin contends, however, that even if its claims for
declaratory and injunctive relief have been mooted by the Revised
Ordinance, its claim for nominal damages yet presents a live
controversy.5 Chapin posits that “for so long as the plaintiff has
a cause of action for damages, a defendant’s change in conduct will
not moot the case.” Buckhannon Bd. & Care Home, Inc v. W. Va.
Dep’t of Health & Human Res., 532 U.S. 598, 608-09 (2001). This
proposition is normally valid, and it has been applied where a
plaintiff is only pursuing a claim for nominal damages. See Henson
v. Honor Comm. of the Univ. of Va., 719 F.2d 69, 72 n.5 (4th Cir.
1983) (observing that withdrawal of disciplinary charges did not
moot claim because plaintiff also sought nominal damages); see also
KH Outdoor, LLC v. Clay County, 482 F.3d 1299, 1303 (11th Cir.
2007) (noting that, because nominal damages were requested, changes
made to ordinance did not moot claim).
Chapin’s assertion of a nominal damages claim alone is
insufficient to preserve a live controversy, however, as the
5
Chapin has not pursued its claim for consequential damages on
appeal. See Fed. R. App. P. 28(a)(9)(A); Carter v. Lee, 283 F.3d
240, 252 n.11 (4th Cir. 2002) (noting that contentions not raised
in opening brief are deemed waived).
13
Ordinance was never enforced against it and it has not suffered any
constitutional deprivation. See Tanner Adver. Group, LLC v.
Fayette County, 451 F.3d 777, 786 (11th Cir. 2006) (concluding that
“request for damages that is barred as a matter of law cannot save
a case from mootness”)(citing Arizonans for Official English v.
Arizona, 520 U.S. 43, 69 (1997)). The Supreme Court’s decision in
Carey v. Piphus, 435 U.S. 247, 254 (1978), “obligates a court to
award nominal damages when a plaintiff establishes the violation of
[a constitutional right] but cannot prove actual injury.” Farrar
v. Hobby, 506 U.S. 103, 112 (1992). As the Supreme Court has
observed, “[w]hatever the constitutional basis for § 1983
liability, such damages must always be designed to compensate
injuries caused by the [constitutional] deprivation.” Memphis
Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 309-10 (1986) (internal
quotation marks omitted). Thus, although Chapin need not prove an
actual, compensable injury in order to recover nominal damages, it
must nevertheless show that a constitutional deprivation occurred.
Id. at 308 n.11; see also Reyes, 300 F.3d at 453 (“Nominal damages
may be available in a § 1983 case if a plaintiff was deprived of an
absolute right yet did not suffer an actual injury.”); Williams v.
Griffin, 952 F.2d 820, 825 n.2 (4th Cir. 1991) (concluding that “in
the absence of a showing of actual injury, [plaintiff] would still
be entitled to nominal damages upon proof of a constitutional
violation”).
14
In the absence of a constitutional deprivation, Chapin’s
nominal damages claim does not save this case from mootness.
Moreover, the fact that Chapin could have suffered some
constitutional deprivation if the Town had enforced the Ordinance
does not save its claim for nominal damages — such damages are
reserved for constitutional deprivations that have occurred, not
those that are merely speculative. See Tanner, 451 F.3d at 786-87(concluding that claims of appellant could not be saved from
mootness by claim for damages where sign ordinance had not caused
harm); see also Comm. for the First Amendment v. Campbell, 962 F.2d
1517, 1526 (10th Cir. 1992) (finding that, although adoption of new
policy mooted claims for injunctive relief, “the district court
erred in dismissing the nominal damages claim which relates to past
(not future) conduct”) (emphasis in original).
In Covenant Media of South Carolina, LLC v. City of North
Charleston, we recently addressed a mootness issue related to
nominal damages in a § 1983 case. See 493 F.3d 421 (4th Cir.
2007). Covenant Media had filed a civil action against the City of
North Charleston, alleging a violation of its First Amendment
rights by enforcement of the City’s sign regulation. Id. at 424.
Covenant Media had submitted an application to construct a
billboard as required by the City’s sign regulation, and when the
City failed to act on its application for several months, Covenant
Media filed suit. Id. at 425. Covenant Media contended that the
15
sign regulation was unconstitutional because it “failed to require
a decision on a sign permit within a specific time period, in
contravention of procedural safeguards mandated by Freedman v.
Maryland, 380 U.S. 51, 58-59 (1965).” Id. at 428. In addition to
injunctive relief, Covenant Media sought nominal damages. Id. at
427. During the litigation, North Charleston adopted a revised
regulation, which placed a forty-five day time limitation on the
disposition of sign permit applications — a procedural provision
not included in its predecessor regulation. Id. at 426. We
decided that, if the City’s original sign regulation lacked the
procedural safeguards mandated by Freedman, Covenant had “suffered
an injury by the City’s application of an unconstitutional
ordinance that is redressable at least by nominal damages.” Id. at
428. Accordingly, we determined that “Covenant’s suit is not moot
because if Covenant is correct on the merits, it is entitled to at
least nominal damages.” Id. at 429 n.4. We nevertheless cautioned
that “a plaintiff must establish that he has standing to challenge
each provision of an ordinance by showing that he was injured by
application of those provisions.” Id. at 430 (emphasis added).
The Covenant Media situation is readily distinguishable from
this appeal. Unlike the plaintiff in Covenant Media, Chapin’s
permit application received prompt attention. In fact, Chapin was
not required to submit a permit application before making changes
to its sign. Despite assurances that it did not need a permit,
16
Chapin nevertheless submitted an application. In response, the
Town immediately waived the permit fee and approved the
application. It was only after Chapin installed and began using
its EMC, on August 20, 2004, that the Town realized the nature of
Chapin’s changes to its sign and requested that it remove the EMC.
Notwithstanding Chapin’s violation of the Ordinance, the Town
did not fine or cite Chapin, and no court proceedings were
initiated against it. In fact, in its summary judgment papers,
Chapin informed the district court that “[f]rom the time the sign
was put up through the course of this litigation, the Chapin
Furniture Outlet sign has been in use advertising for the
businesses located on the property the sign is on.” J.A. 360.
Chapin noted that “[t]he sign has been displaying these messages at
the same intervals allowed for time and temperature signs.” Id. at
360-61. Such flashing messages violated the Ordinance, but Chapin
concedes that it has used its EMC throughout the pendency of its
dispute with the Town. Any contention that Chapin’s speech was
chilled by the Ordinance or the Town’s letters requesting
compliance therewith is thus entirely undermined. And, Chapin has
failed to allege any other constitutional deprivation sufficient to
support a claim for nominal damages. Unlike the plaintiff in
Covenant Media, Chapin is unable to show any constitutional injury
caused by the Ordinance. As we observed there, “a plaintiff must
establish that he has standing to challenge each provision of an
17
ordinance by showing that he was injured by application of those
provisions.” Covenant Media, 493 F.3d at 430.
Absent a constitutional deprivation, Chapin’s claim for
nominal damages fails to present a case or controversy sufficient
to avoid mootness. Because we cannot grant “any effectual relief
whatever,” including nominal damages, in favor of Chapin, this
proceeding must be dismissed as moot. Calderon v. Moore, 518 U.S.
149, 150 (1996) (per curiam).
IV.
Pursuant to the foregoing, we vacate the judgment of the
district court and remand for dismissal.6
VACATED AND REMANDED
6
When a claim becomes “moot after the entry of a district
court’s final judgment and prior to the completion of appellate
review, we generally vacate the judgment and remand for dismissal.”
Mellen v. Bunting, 327 F.3d 355, 364 (4th Cir. 2003). Although
vacatur is not appropriate where mootness occurs due to the
voluntary actions of the losing party, it is available where
“appellate review of the adverse ruling was prevented by the
vagaries of circumstance or the unilateral action of the party who
prevailed below.” Valero Terrestrial Corp. v. Paige, 211 F.3d 112,
117-18 (4th Cir. 2000) (internal citations and quotation marks
omitted).
18