Linlor v. Nevada Department of Motor Vehicles , 569 F. App'x 538 ( 2014 )

FILED
NOT FOR PUBLICATION APR 16 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES LINLOR, No. 12-15061
Plaintiff - Appellant, D.C. No. 3:11-cv-00508-LRH-
WGC
v.
NEVADA DEPARTMENT OF MOTOR MEMORANDUM*
VEHICLES,
Defendant,
And
BRUCE H. BRESLOW,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted February 12, 2014
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: CONSUELO M. CALLAHAN and MILAN D. SMITH, JR. Circuit
Judges, and EDWARD R. KORMAN, Senior District Judge.**
Appellant James Linlor (“Linlor”) appeals the dismissal of his suit against
Bruce H. Breslow (“Breslow”), the former director of the Nevada Department of
Motor Vehicles (“DMV”), which was filed as a result of the DMV’s denial of Linlor’s
applications for personalized license plates. In 2009 and 2010, the DMV denied
Linlor’s applications, on behalf of his wholly owned and controlled corporation,
Paperless, Inc., for personalized prestige license plates bearing the phrases
“GOPALIN,” “PALIN,” “PALIN12,” and “PALIN 16.” The DMV based its decision
on sections 482.320(6)(b)(5) and 482.320(6)(f) of the Nevada Administrative Code
(“NAC”), which provided, respectively, that “[n]o combination of letters, numbers or
spaces is allowed if it . . . [e]xpresses contempt, ridicule or superiority of . . . political
affiliation,” or “[i]s determined by the Department to be inappropriate.”
An Administrative Law Judge (“ALJ”) reversed the denial of the application
for the “PALIN,” “PALIN12,” and “PALIN 16” license plates on September 9, 2010,
after which the DMV issued those license plates to Linlor. A “GOPALIN” license
plate was ultimately issued to Linlor’s colleague, who also applied for it on behalf of
Paperless, Inc. Subsequently, on October 6, 2011, Breslow, then the DMV director,
**
The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
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issued a memorandum advising the DMV not to “deny any new personalized license
plate requests” based on the provisions of the Nevada Administrative Code that were
relied upon to deny Linlor’s initial applications.
More significantly, the memorandum indicated that the DMV had initiated
formal procedures to repeal those provisions. The repeal process entailed, among
other procedures, providing notice to the public so that it has an opportunity to
comment on proposed amendments, issuing an informational statement describing
comments received and responses, see Nev. Rev. Stat. § 233B.066, and issuing a
summary of the reasons for adopting a regulation without change, if none were made
following the comment period. Similar procedures would be required to reinstate the
regulations. While this appeal was pending, the amended regulations became final on
February 15, 2012, formally repealing sections 482.320(6)(b)(5) and 482.320(6)(f).
We hold that the challenges to the repealed regulations are moot. The repeal
of NAC sections 482.320(6)(b)(5) and 482.320(6)(f) reflects a permanent change in
the DMV’s personalized license plate regulations, so that the challenged conduct
“cannot reasonably be expected” to recur. See White v. Lee, 227 F.3d 1214, 1243– 44
(9th Cir. 2000). Indeed, the formal manner in which the repeal of the regulations was
effected, and the comparable steps that would have to be taken before they could be
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reinstated, combined with the years that have passed since the DMV last enforced
those regulations against Linlor or anyone else, as well as the earlier ALJ’s ruling,
provide sufficient assurance that the “new policy [was] the kind of permanent change
that proves voluntary cessation” sufficient to moot Linlor’s claims for relief with
respect to the regulations. Bell v. City of Boise, 709 F.3d 890, 901 (9th Cir. 2013).
Perhaps recognizing the lack of merit in his challenge to the repealed
regulations, Linlor argues that the case is not moot because a Nevada statute, Nev.
Rev. Stat. § 482.3667(5), “independently authorizes the DMV to prohibit the
combination of letters deemed ‘inappropriate.’” While Linlor’s claim based on
section 482.3667(5) is not moot given that this statute has not been repealed, this
claim fails on the merits. Linlor’s interpretation is inconsistent with a plain reading
of that statute, which provides that the DMV “may limit by regulation the number of
letters and numbers used and prohibit the use of inappropriate letters or combinations
of letters and numbers.” Nev. Rev. Stat. § 482.3667(5). It does not authorize the
DMV to act without going through the formal process of promulgating regulations
prohibiting certain letters and combinations of letters and numbers. Indeed, while the
regulations at issue here were in effect, the DMV did not interpret NRS section
482.3667(5) to authorize it to deny license plate applications as inappropriate. Rather,
the DMV relied on its regulations, promulgated pursuant to NRS section 482.3667(5),
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to deny license plate applications, like Linlor’s. The DMV maintains its position that
the statute is “simply a grant of rule-making authority to the DMV by the Nevada
State Legislature,” and Nevada courts “give deference to administrative
interpretations.” Thomas v. City of N. Las Vegas, 127 P.3d 1057, 1070 (Nev. 2006)
(citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844
(1984)).
AFFIRMED.
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