24th Senatorial District v. James Alcorn

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1478
24TH SENATORIAL DISTRICT REPUBLICAN COMMITTEE;
KENNETH H. ADAMS, individually and as Chairman of the
24th Senatorial District Republican Committee,
Plaintiffs - Appellants,
and
DANIEL MOXLEY,
Intervenor/Plaintiff,
v.
JAMES B. ALCORN, in his official capacity as Chairman of the
Virginia State Board of Elections; CLARA BELLE WHEELER, in
her official capacity as Vice-Chairman of the Virginia State
Board of Elections; SINGLETON B. MCALLISTER, in her official
capacity as Secretary of the Virginia State Board of
Elections; VIRGINIA DEPARTMENT OF ELECTIONS;
EMMETT W. HANGER, JR.,
Defendants - Appellees.
-------------------------------------
REPUBLICAN PARTY OF VIRGINIA, INC.,
Amicus Supporting Appellants.
No. 15-1483
DANIEL MOXLEY,
Intervenor/Plaintiff – Appellant,
24TH SENATORIAL DISTRICT REPUBLICAN COMMITTEE; KENNETH H.
ADAMS, individually and as Chairman of the 24th Senatorial
District Republican Committee,
Plaintiffs,
v.
JAMES B. ALCORN, in his official capacity as Chairman of the
Virginia State Board of Elections; CLARA BELLE WHEELER, in
her official capacity as Vice-Chairman of the Virginia State
Board of Elections; SINGLETON B. MCALLISTER, in her official
capacity as Secretary of the Virginia State Board of
Elections; VIRGINIA DEPARTMENT OF ELECTIONS;
EMMETT W. HANGER, JR.,
Defendants - Appellees.
-------------------------------------
REPUBLICAN PARTY OF VIRGINIA, INC.,
Amicus Supporting Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Harrisonburg. Elizabeth K. Dillon,
District Judge. (5:15-cv-00012-EKD)
Argued: December 9, 2015 Decided: April 19, 2016
Before TRAXLER, Chief Judge, and GREGORY and DIAZ, Circuit
Judges.
Affirmed by published opinion. Judge Gregory wrote the majority
opinion, in which Judge Diaz joined. Chief Judge Traxler wrote
a dissenting opinion.
ARGUED: Jeffrey R. Adams, WHARTON, ALDHIZER & WEAVER, PLC,
Harrisonburg, Virginia, for Appellants. Joshua D. Heslinga,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellees. Richard Dean Boyer, BOYER LAW
FIRM, PLLC, Lynchburg, Virginia, for Intervenor. ON BRIEF:
Thomas E. Ullrich, WHARTON, ALDHIZER & WEAVER, PLC, Staunton,
2
Virginia; John C. Wirth, NELSON, MCPHERSON, SUMMERS & SANTOS,
L.C., Staunton, Virginia, for Appellants. Mark R. Herring,
Attorney General of Virginia, Cynthia E. Hudson, Chief Deputy
Attorney General, John W. Daniel II, Deputy Attorney General,
Kristina Perry Stoney, Senior Assistant Attorney General,
Anna T. Birkenheier, Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees
Alcorn, Wheeler, McAllister, and the Virginia Department of
Elections; Chris Ashby, ASHBY LAW PLLC, Alexandria, Virginia,
for Appellee Emmett W. Hanger, Jr. Patrick M. McSweeney,
MCSWEENEY, CYNKAR & KACHOUROFF, PLLC, Powhatan, Virginia, for
Amicus Curiae.
3
GREGORY, Circuit Judge:
The 24th Senatorial District Republican Committee of
Virginia and Committee Chairman Kenneth H. Adams (together, the
“Committee”), and Plaintiff-Intervenor Daniel Moxley, appeal the
district court’s dismissal of their complaints for lack of
subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). For
the following reasons, we conclude that the district court
correctly dismissed the plaintiffs’ and plaintiff-intervenor’s
complaints and therefore affirm.
I.
A.
Under Virginia law, political parties generally “have the
right to determine the method by which a party nomination for a
member of . . . any statewide office shall be made.” Va. Code
Ann. § 24.2-509(A). “Notwithstanding” this general rule, the
Incumbent Protection Act (the “Act”) provides that “[a] party
shall nominate its candidate for election for a General Assembly
district where there is only one incumbent of that party for the
district by the method designated by that incumbent, or absent
any designation by him by the method of nomination determined by
the party.” Va. Code Ann. § 24.2-509(B) (emphasis added).
The Republican Party of Virginia (the “Party”) is governed
pursuant to its Plan of Organization (the “Plan”), which the
4
Committee acknowledges “is the Party’s definitive statement on
any matter it addresses.” Pls.’ Mem. Supp. Mot. Prelim. Inj. at
3. According to the Plan, Legislative District Committees
(“LDCs”) are unincorporated associations designated pursuant to
the Plan that “determine whether candidates for Legislative
District public office shall be nominated by Mass Meeting, Party
Canvass, Convention or Primary, where permitted to do so under
Virginia Law.” J.A. 163. The Committee is the LDC responsible
for determining the method of nomination for candidates seeking
the Republican nomination for the 24th Senatorial District for
the Virginia General Assembly.
In December 2014, the Committee exercised its authority
under the Plan and adopted a resolution designating a convention
as the method of nominating the Republican candidate for the
24th Senate District seat in the 2015 election. On February 23,
2015, incumbent state senator Emmett Hanger relied on the
authority granted to him by the Act and designated a primary as
the method of nomination.
B.
The Committee filed this suit pursuant to 42 U.S.C. §§ 1983
and 1988 against the members of the Virginia State Board of
Elections and the Virginia Department of Elections (together,
the “Commonwealth”) seeking declaratory and injunctive relief.
The Committee’s complaint alleges that the Act infringes on its
5
First Amendment right to freedom of association by preventing it
from determining the method of nomination in contravention of
the terms of the Plan. 1
Senator Hanger and Moxley, who sought the Party’s
nomination for Senator Hanger’s seat on the 24th District, both
moved to intervene. Moxley alleged that the Act violates his
constitutional rights under the Equal Protection Clause of the
Fourteenth Amendment because it confers on an incumbent an
electoral advantage and invidiously discriminates against him
and all other potential challengers to Hanger.
Plaintiffs filed a motion for preliminary injunction
seeking to enjoin the Commonwealth from implementing a primary.
Three days before a scheduled hearing on the preliminary
injunction, the defendants filed a motion to dismiss, arguing
that the Committee failed to establish standing because the Plan
expressly incorporates Virginia law into its delegation of
authority to the LDC.
At the outset of the motion hearing, the district court
asked counsel whether there were any “issues of disputed fact.”
J.A. 203. Counsel for the Committee responded, “We believe we
1 Although the Committee argues here that it also raises an
equal protection challenge, it did not plead a claim under the
Equal Protection Clause in the district court. Because this
issue is raised for the first time on appeal, we decline to
address it. See Muth v. United States, 1 F.3d 246, 250 (4th
Cir. 1993).
6
do not.” The district court heard from both sides on the
standing issue and the proper interpretation of the Plan. See
J.A. 213-229.
The district court subsequently granted the defendants’
motions to dismiss, holding that the plaintiffs failed to meet
their burden to establish standing, and denying the remaining
pending motions as moot, including the motions for preliminary
injunction.
II.
On appeal, the plaintiffs argue that the district court
erred by dismissing the complaint for lack of subject matter
jurisdiction. We review the district court’s dismissal for lack
of standing de novo. Lee Graham Shopping Center, LLC v. Estate
of Kirsch, 777 F.3d 678, 680 (4th Cir. 2015).
To have standing, a plaintiff must demonstrate (1) “he has
suffered an actual or threatened injury,” (2) “a causal
connection between the injury complained of and the challenged
action,” and (3) “the injury can be redressed by a favorable
decision.” Marshall v. Meadows, 105 F.3d 904, 906 (4th Cir.
1997). An “injury in fact” is “an invasion of a legally
protected interest which is (a) concrete and particularized
. . . and (b) actual or imminent, not conjectural or
hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555,
7
560 (1992) (internal quotation marks omitted). The plaintiffs
have the burden of alleging sufficient facts to demonstrate
standing. Marshall, 105 F.3d at 906 (citing FW/PBS, Inc. v.
City of Dallas, 493 U.S. 215, 231 (1990)).
III.
Before we turn to the language of the Plan itself, we
address the Committee’s argument that the construction of the
Plan is a jurisdictional fact intertwined with the facts central
to the merits of the dispute and that dismissal under Federal
Rule of Civil Procedure 12(b)(1) prior to allowing discovery was
premature. In the alternative, the Committee argues that the
evidence was insufficient to dismiss at the 12(b)(1) stage,
particularly because the proper construction of the Plan was a
contested fact. The Committee concedes that it waived a hearing
on the motions to dismiss, but nevertheless insists that the
district court failed to develop sufficient facts to resolve the
jurisdictional issue.
“[A] defendant may challenge subject matter jurisdiction in
one of two ways.” Kerns v. United States, 585 F.3d 187, 192
(4th Cir. 2009) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th
Cir. 1982)). “First, the defendant may contend that a complaint
simply fails to allege facts upon which subject matter
jurisdiction can be based.” Id. (citing Adams, 697 F.2d at
8
1219). Alternatively, the defendant may contend “that the
jurisdictional allegations of the complaint were not true.”
Adams, 697 F.2d at 1219. In the second scenario, “[a] trial
court may then go beyond the allegations of the complaint” and
hold an evidentiary hearing to “determine if there are facts to
support the jurisdictional allegations.” Id. There is no
presumption of truth and the court weighs the evidence presented
in a 12(b)(1) hearing to determine jurisdiction. Id. “If,
however, the jurisdictional facts are intertwined with the facts
central to the merits of the complaint, ‘a presumption of
truthfulness should attach to the plaintiff’s allegations.’”
Rich v. United States, 811 F.3d 140, 145 (4th Cir. 2015) (citing
Kerns, 585 F.3d at 193). And “the court should resolve the
relevant factual disputes only after appropriate discovery.”
Id. (citation omitted).
The Committee relies primarily on our decision in Kerns for
its argument that dismissal at the pleading stage was premature.
However, we have said that the “controlling jurisdictional fact
in Kerns—whether an employee was acting within the scope of her
employment for purposes of the Federal Tort Claims Act—has no
analog” where the issue before the court is “purely a legal
question that can be readily resolved in the absence of
discovery.” Blitz v. Napolitano, 700 F.3d 733, 739 (4th Cir.
2012). In Blitz, we analyzed whether the Transportation
9
Security Administration’s standard operating procedures for
checkpoint screening constituted an “order” under 49 U.S.C.
§ 46110. Id. at 735. The district court had decided the
question, and granted defendant’s motion to dismiss under
Federal Rule of Civil Procedure 12(b)(1), without reviewing the
written procedures themselves and without an administrative
record before it. Id. at 738. We decided that because an
extensive administrative record had been filed in a similar case
before the D.C. Circuit, and that such a record would be
submitted if Plaintiffs filed their petition in the appropriate
court, the record before the district court was sufficient to
answer the jurisdictional question. Id. at 739.
Like Blitz, we find that the record before the district
court in this case was sufficient to decide the jurisdictional
question. Not only did the record contain the complete Party
Plan, the district court undertook a thorough and exacting
review of it. See J.A. 363-69.
Moreover, the Committee and the Commonwealth both clearly
represented to the district court that there were no issues of
disputed fact. J.A. 203. The Committee now contends that its
“factual stipulation” was “limited” to the motion for
preliminary injunction. There is no evidence from the
transcript that the Committee’s stipulation was indeed limited
10
in this way and no argument presented for what the legal
significance of such a limitation might be.
The Committee also fails to present a compelling argument
as to what evidence additional discovery would have brought to
light. When asked by the district court whether there was “any
evidence [they could] provide . . . as to why that particular
phrase is in that part of the plan and not in other portions of
the plan,” counsel for the Committee replied: “Not any
evidence, no.” J.A. 223. The Committee’s insistence that
discovery was necessary is particularly puzzling given the fact
that no one sought or mentioned discovery at the hearing or in
the briefs they submitted after the hearing. See J.A. 312.
Finally, the district court’s singular use of the phrase
“more reasonable” to describe the Committee’s construction of
the Plan in its opinion does not in and of itself transform what
is essentially a legal question into a factual one. “The
interpretation of a written contract is a question of law that
turns upon a reading of the document itself, and a district
court is in no better position than an appellate court to decide
such an issue.” Seabulk Offshore, Ltd. v. Am. Home Assur. Co.,
377 F.3d 408, 418 (4th Cir. 2004). Because the proper
construction of the Plan is a question of law and the record
before the district court was sufficient, we conclude that
jurisdictional discovery was not necessary.
11
IV.
Whether the Committee has standing depends on whether its
alleged injury was the result of the Act or a lawful and
voluntary decision on behalf of the Party. The Commonwealth
argues that the Party has limited its authority to determine
unilaterally the method of nomination through its adoption of
Article V Section D(1)(a) of the Party Plan, which reads, “The
Legislative District Committee shall determine whether
candidates for Legislative District public office shall be
nominated by Mass Meeting, Party Canvass, Convention or Primary,
where permitted to do so under Virginia Law.” J.A. 163
(emphasis added). We agree.
A.
We have previously held that where an “alleged injury is
caused by a voluntary choice made by the Virginia Republican
Party and not [the challenged state law],” plaintiffs do not
establish causation. Marshall, 105 F.3d at 906. In Marshall,
two members of the Party challenged Virginia’s open-primary law,
which allows primary voting for all individuals qualified to
vote regardless of party affiliation, alleging that it burdened
their rights to free speech and freedom of association. Id. at
905 (citing Va. Code Ann. § 24.2-530). Then-incumbent U.S.
senator John Warner exercised his power under the Act and
12
selected a primary as the means of nomination for his seat. Id.
Several months later, the Party also adopted a primary. Id.
The district court dismissed the suit for lack of subject
matter jurisdiction, and we affirmed, concluding that the
plaintiffs failed to satisfy the causation and redressability
components of the standing inquiry. Id. at 905-07. We found
that it was the Party’s decision to conduct an open primary,
rather than the open primary law itself, that was the cause of
plaintiffs’ alleged injury because (1) it was not
unconstitutional for a political party to choose an “open”
primary and (2) there was “no indication” that the Party “would
have a ‘closed’ primary in the absence of the Open Primary Law
or change to a ‘closed’ primary if we declared the Open Primary
Law unconstitutional.” Id. at 906. “In other words, if a
political party’s choice of an ‘open’ primary is a lawful and
voluntary one, the decision of the party is the cause of the
alleged ‘forced’ association, not the state law requiring the
‘open’ primary.” Id. at 906 (citing Marchioro v. Chaney, 442
U.S. 191, 199 (1979) (“There can be no complaint that the
party’s right to govern itself has been substantially burdened
by statute when the source of the complaint is the party’s own
decision.”)).
13
B.
We now turn to the construction of the Plan to determine
whether the Party voluntarily submitted to the Act and
incorporated it by reference into the Plan.
“The constitution and by-laws adopted by a voluntary
association constitutes a contract between the members, which,
if not immoral or contrary to public policy, or the law, will be
enforced by the courts.” Gottlieb v. Econ. Stores, Inc., 102
S.E.2d 345, 351 (Va. 1958) (citation omitted). Therefore, we
interpret the Plan according to general principles of contract
interpretation under Virginia law.
In Virginia, “courts adhere to the ‘plain meaning’ rule in
interpreting and enforcing a contract.” Hitachi Credit Am.
Corp. v. Signet Bank, 166 F.3d 614, 624 (4th Cir. 1999). If the
contract “is complete on its face” and “plain and unambiguous in
its terms,” we do not “search for its meaning beyond the
instrument itself.” Id. Furthermore, we “read the contract as
a single document and give meaning to every clause where
possible . . . giv[ing] effect to the presumption that the
parties have not used words aimlessly.” Id. (citations
omitted.)
Whether the Party voluntarily submitted to the Act turns on
the meaning of the clause “where permitted to do so under
Virginia Law.” This phrase does not appear anywhere else in the
14
Plan, despite the fact that there are similar delegations in
three other parts of the Plan’s text. For example, article III,
section D(1)(b) provides that “[the State Central Committee]
shall determine whether candidates for statewide public office
shall be nominated by Convention, Party Canvass or Primary.”
Similarly, article IV, section D(1)(a) specifies that “The
[Congressional] District Committee shall determine whether
candidates for District public office shall be nominated by
Convention, Party Canvass or Primary.” See also art. III
§ D(1)(a) (“The Unit Committee shall determine whether
candidates for local and constitutional public offices shall be
nominated by Mass Meeting, Party Canvass, Convention, or Primary
and whether Unit Chairman and Committee members shall be elected
by Mass Meeting, Party Canvass, Convention, or Primary.”). When
asked at the hearing if the Committee had “any evidence . . . as
to why that particular phrase is in that part of the plan and
not in any other portions of the plan,” counsel for the
Committee answered, “Not any evidence, no.” J.A. 223. The
Plan’s omission of the relevant language in three near-verbatim
parallel provisions reflects a deliberate choice to provide a
limited delegation of authority to the LDCs. See Smith Barney,
Inc. v. Critical Health Sys., 212 F.3d 858, 861 (4th Cir. 2000)
(relying on the principle of expressio unius est exclusio
alterius to interpret contract clause).
15
Furthermore, the fact that the Plan defines “primary” as
“subject to the Election Laws of the Commonwealth of Virginia,
except to the extent that any provisions of such laws conflict
with this Plan, infringe the right to freedom of association, or
are otherwise invalid” indicates that the Party was well aware
of how to draft language that supported a constitutional
challenge to Virginia law. J.A. 23 (Plan at Art. II, ¶ 24)
(emphasis added). A faithful reading of the contract that
“gives effect to the presumption that the [Party has] not used
words aimlessly” requires us to view these selective omissions
and inclusions as intentional and meaningful. Hitachi, 166 F.3d
at 624. If the Party had intended to preserve its ability to
unilaterally choose the method of nomination for legislative
districts, it could have done so. Similarly, if it had intended
to give the Committee the authority to challenge a provision of
Virginia law, it could have done so. The plain language of the
contract, read as a single document, shows clearly that it did
not.
The Committee contends that the language is more naturally
read as “an acknowledgment of the potential for conflict between
the Act and the Plan . . . and a statement that the outer limits
of an LDC’s authority to select the method of nomination are
defined by the coercive force of Virginia law.” To the extent
this differs from the Commonwealth’s interpretation, it
16
certainly does not conflict with it, unless we read in
nonexistent language. And that is precisely what the Committee
would have us do—read the phrase “Virginia law” as “valid,
constitutional Virginia law” and assume that the Act is
unconstitutional. 2 In interpreting a contract under Virginia
law, however, we “cannot read in[] . . . language which will add
to or take away from the meaning of the words already contained
therein.” Wilson v. Holyfield, 313 S.E.2d 396, 398 (Va. 1984).
The Committee’s tortured reading contravenes the plain language
of the Plan and requires us to assume the outcome of the very
challenge before us.
2 The dissent relies on DIRECTV, Inc. v. Imburgia, 136 S.
Ct. 463, 469 (2015), to support the proposition that “the phrase
‘Virginia Law’ in the Plan . . . cannot be construed to include
invalid Virginia statutes.” Dissenting op. at 12. DIRECTV
concerned the interpretation of the phrase “law of your state”
in a customer service agreement arbitration clause. DIRECTV,
136 S. Ct. at 466. The California Court of Appeals had
interpreted “law of your state” to include California law it
conceded was invalidated by the Supreme Court’s decision in AT&T
Mobility LLC v. Concepcion, 563 U.S. 333 (2011). Id. at 467.
The Supreme Court reversed, holding that the California Court of
Appeal’s interpretation did “not place arbitration contracts ‘on
equal footing with all other contracts,’” did “not give ‘due
regard . . . to the federal policy favoring arbitration,’” and
therefore was “pre-empted by the Federal Arbitration Act.” Id.
at 471. DIRECTV is of no import here because no state or
federal court has held that Virginia’s Incumbent Protection Act
is unconstitutional or preempted by federal law. Thus, even if
we did construe “‘Virginia law’ to encompass only valid Virginia
law,” as the dissent suggests, the Incumbent Protection Act,
unlike California’s pre-Concepcion state law, has never been
invalidated by statute or this, or any other, Court.
17
The Committee’s attempts to distinguish the facts of
Marshall are similarly unavailing. As we explained above,
disagreement over the Plan’s meaning does not transform this
legal dispute over contract interpretation into a factual one.
Moreover, our holding in Marshall was clear: where the alleged
injury is caused by the Party’s voluntary choice, the Party does
not establish causation. 105 F.3d at 906. The injury in both
cases is traceable to the Party’s voluntary choice: in
Marshall, the choice was to hold an open primary. Id. Here,
the choice was to defer to the incumbent’s selected nomination
method by limiting the authority of the LDC. Whatever factual
distinctions may exist do not render inapplicable the analysis
and holding of Marshall.
Finally, the Committee’s suggestion that the district court
erred by failing to secure a definitive interpretation of the
Plan from the Party is untimely and therefore waived, as any
request should have been made to the district court. Helton v.
AT&T, Inc., 709 F.3d 343, 360 (4th Cir. 2013) (citing Muth v.
United States, 1 F.3d at 250 (4th Cir. 1993)).
We conclude that the language of the Plan is clear and
unambiguous: the Plan delegates to the Committee the authority
to determine the nomination method unless Virginia law otherwise
limits that authority. Where Virginia law sets forth an
alternative method of nomination, the Plan does not give the
18
Committee the authority to supersede or challenge that
determination. Because the Party has made a voluntary choice to
limit the Committee’s authority in this way, the plaintiffs have
“no complaint that the party’s right to govern itself has been
substantially burdened by” the Act because “the source of the
complaint is the party’s own decision.” Marshall, 105 F.3d at
906 (citing Marchioro, 442 U.S. at 199). Accordingly, we affirm
the district court’s holding that the Committee lacks standing
to bring this suit.
V.
Lastly, we address Moxley’s claim that he has standing
independent of the Party to bring his equal protection claim.
Under Virginia law, there are two entities that have the
right to determine the nomination method: political parties and
incumbents. Moxley is a member of the Party and, as a member,
he is contractually bound by the Plan’s rules and decisions.
See Gottlieb v. Econ. Stores, Inc., 102 S.E.2d 345, 351 (Va.
1958) (“The constitution and by-laws adopted by a voluntary
association constitutes a contract between the members, which,
if not immoral or contrary to public policy, or the law, will be
enforced by the courts.” (citation omitted)). The Plan does not
authorize individual party officials or members to determine the
nomination method for legislative districts. Moxley seems to
19
recognize this, as he acknowledges that if the Committee had
chosen a primary, he would have been “uninjured” because he has
“no legal claim to any other method of nomination.” J.A. 344.
Because neither Virginia law nor the Plan gives Moxley “a
legally protected interest” in determining the nomination method
in the first place, he fails to make out “an invasion of a
legally protected interest,” i.e. actual injury, in this case.
Lujan, 504 U.S. at 560 (emphasis added); see, e.g., Friends for
Ferrell Parkway, LLC v. Stasko, 282 F.3d 315, 321 (4th Cir.
2002) (observing that land transaction which would prevent
development of land previously designated as a roadway did not
impact plaintiffs’ “liberty interest in access to their
community” because “under Virginia law they have no entitlement
to the construction of a roadway”).
The dissent relies on out of circuit authority to support
its view that Moxley’s alleged interest in depriving his
opponent the ability to choose “the nominating method that would
best ensure his re-nomination” is sufficient to establish his
own independent standing. Dissenting op. at 4 (citing Texas
Democratic Party v. Benkiser, 459 F.3d 582, 585-87 & n.4 (5th
Cir. 2006); Schulz v. Williams, 44 F.3d 48, 53 (2d Cir. 1994);
Owen v. Mulligan, 640 F.2d 1130, 1132-33 (9th Cir. 1981)). But
even if we assume Moxley has a legally protected interest, he
still fails to demonstrate how that injury is redressable by a
20
decision of this Court. In Benkiser, for example, the Fifth
Circuit found that plaintiff political party’s “threatened loss
of political power . . . likely would be redressed by a
favorable decision, which would preclude a Republican party
candidate.” Benkiser, 459 F.3d at 587 (emphasis added). Here,
however, the plain language of the Plan indicates that only the
LDC shall determine the method of nomination and only where the
application of Virginia law does not limit that authority. Even
in the absence of the Act, Moxley is bound by the LDC’s choice
of nomination method. Accordingly, even if the Act were held
unconstitutional, the Party is not precluded from “voluntarily
elect[ing]” to defer to the incumbent’s choice, “which it is
legally entitled to do.” Marshall, 105 F.3d at 907. And “there
is nothing [we] can do to prevent” the Party from deferring to
the incumbent’s choice. Id.
VI.
We must apply the plain language of the contract. For the
foregoing reasons, the decision of the district court is
AFFIRMED.
21
TRAXLER, Chief Judge, dissenting:
The majority affirms the dismissal of this case for lack of
standing because it believes the contractual term “Virginia Law”
includes Virginia statutes that are void for
unconstitutionality. Because I believe that the phrase plainly
does not encompass Virginia statutes that are invalid, and
because the Supreme Court has construed nearly identical
language to mean valid state law, I respectfully dissent.
I.
Virginia Code § 24.2–509(A) provides that “[t]he duly
constituted authorities of the political party for the district,
county, city, or town in which any other office is to be filled
shall have the right to determine the method by which a party
nomination for that office shall be made.” 1 This lawsuit
involves constitutional challenges to a statutory exception to
that rule that can deprive the political parties of the right to
choose the nomination method for candidates for the Virginia
General Assembly. That exception, commonly referred to as the
Incumbent Protection Act (“the Act”), states in pertinent part,
“Notwithstanding Section A, . . . [a] party shall nominate its
candidate for election for a General Assembly district where
1Section 24.2-509(A) also includes similar language
concerning the nomination of candidates for the United States
Senate or for any statewide office.
22
there is only one incumbent of that party for the district by
the method designated by that incumbent, or absent any
designation by him by the method of nomination determined by the
party.” Va. Code § 24.2–509(B).
Central to this appeal is the Plan of Organization (the
“Plan”) of the Republican Party of Virginia (the “Party”), which
is a contract governing the Party’s members and operation. The
24th Senatorial District Republican Committee and its chairman
(collectively, the “Committee”) brought this action in federal
district court against the Virginia Department of Elections and
various officials with the Virginia State Board of Elections
(collectively, “the Defendants”), claiming that the Act violated
its First Amendment right to free association by denying the
Committee its right under the terms of the Plan to decide the
nomination method for candidates seeking the Republican
nomination for the Virginia General Assembly in its district.
(The Committee attached the Plan as an exhibit to its
complaint.) Senator Emmett Hanger, the incumbent, and Daniel
Moxley, a Republican challenger, later intervened in the suit.
Moxley asserted a claim alleging that the Act violated his
Fourteenth Amendment right to equal protection under the law by
23
allowing the incumbent Hanger to choose the nomination method. 2
The district court eventually dismissed the entire case for lack
of standing. See Adams v. Alcorn, No. 5:15cv00012, 2015 WL
1524481 (W.D. Va. Apr. 2, 2015). The Committee and Moxley have
appealed.
We review de novo a district court order dismissing for
lack of standing. See Cooksey v. Futrell, 721 F.3d 226, 234
(4th Cir. 2013). On review of a dismissal of a complaint, we
“assume all well-pled facts to be true” and “draw all reasonable
inferences in favor of the plaintiff.” Nemet Chevrolet Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)
(alteration & internal quotation marks omitted). We also
“consider exhibits attached to the complaint.” Cooksey, 721
F.3d at 234 (internal quotation marks omitted).
Plaintiffs have “the burden of establishing standing” in
order to show that a district court possesses subject-matter
jurisdiction over a case. Miller v. Brown, 462 F.3d 312, 316
(4th Cir. 2006). The doctrine of constitutional standing
includes three components: “(1) the plaintiff must allege that
he or she suffered an actual or threatened injury that is not
conjectural or hypothetical[;] (2) the injury must be fairly
2
Senator Hanger chose a primary, whereas the Committee
favored a convention.
24
traceable to the challenged conduct; and (3) a favorable
decision must be likely to redress the injury.” Id.
A.
The injury the Committee alleges here is the deprivation of
the right to choose the nomination method for the General
Assembly position at issue. And the injury Intervenor Moxley
alleges is that his opponent was given the unfair advantage of
being allowed to choose the nominating method that would best
ensure his re-nomination. 3 Among other relief, the parties’
3Moxley’s alleged interest in depriving his opponent of
that advantage, and thereby increasing his own prospects for
winning the nomination, is sufficient to establish his standing.
See Texas Democratic Party v. Benkiser, 459 F.3d 582, 586-87 &
n.4 (5th Cir. 2006) (holding that plaintiff political party had
standing to sue to prevent opposing party from removing a
candidate from the ballot and replacing him with a new candidate
in part because obtaining that relief would improve the chance
of winning for the party’s candidate); Schulz v. Williams, 44
F.3d 48, 53 (2d Cir. 1994) (holding, based on “[t]he well-
established concept of competitors’ standing,” that political
party chairman had standing to challenge placement of another
party’s gubernatorial candidate on the ballot because that
placement could reduce the chances that the plaintiff’s party
would receive the number of votes it needed to retain its place
on the ballot); Owen v. Mulligan, 640 F.2d 1130, 1132-33 (9th
Cir. 1981) (holding that candidate had standing to sue to compel
Postal Service to cancel a bulk-mail permit being used by a
political opponent to mail political literature insofar as the
reduced-cost mailings put the plaintiff candidate at a
competitive disadvantage). Cf. Bostic v. Schaefer, 760 F.3d
352, 371 (4th Cir. 2014) (“[W]hen the government erects a
barrier that makes it more difficult for members of one group to
obtain a benefit than it is for members of another group, the
injury in fact is the denial of equal treatment resulting from
the imposition of the barrier.” (alterations & internal
quotation marks omitted)).
25
complaints each request a declaration that the Act violates the
United States Constitution. The district court concluded that
the constitutionality of the Act was irrelevant because the
district court believed the Act was not the cause of these
alleged injuries and the requested declaratory relief would do
nothing to redress the alleged injuries in any event. See
Adams, 2015 WL 1524481, at *7; see also id. at *4. That is so,
the district court reasoned, because the Party chose to
incorporate the Act’s terms into its Plan, whether the Act was
constitutional or not; thus, it was the Plan, and not the Act,
that was the cause in fact of the alleged injuries. See id.;
Marshall v. Meadows, 105 F.3d 904, 906 (4th Cir. 1997) (“Because
the alleged injury is caused by a voluntary choice made by the
Virginia Republican Party and not the Open Primary Law, the
plaintiffs have not established causation.”). It is the
correctness of this reading of the Plan that is at the heart of
the case before us.
The parties agree that the Plan should be interpreted as a
contract among the members of the Republican Party of Virginia
(“the Party”) and construed according to ordinary contract
principles. See Gottlieb v. Economy Stores, Inc., 102 S.E.2d
345, 351 (Va. 1958). Because the interpretation of a written
contract presents a question of law, we review the district
26
court’s interpretation de novo. See Seabulk Offshore, Ltd. v.
American Home Assur. Co., 377 F.3d 408, 418 (4th Cir. 2004).
Under Virginia law, “[i]t is well established that, when
the terms of a contract are clear and unambiguous, a court must
give them their plain meaning.” Pocahontas Mining Ltd. Liab.
Co. v. Jewell Ridge Coal Corp., 556 S.E.2d 769, 771 (Va. 2002).
A court determines a contract’s plain meaning by giving its
words “their usual, ordinary, and popular meaning.” Id. at 772.
We therefore need to look at the Plan terms.
For most offices, the Plan unqualifiedly provides that
particular Party committees will choose the nomination method.
See Plan at Art. III, § D(1)(b) (providing that the [“State
Central Committee”] will decide the nomination method for
candidates for statewide public office); Plan at Art. IV, §
D(1)(a) (providing that the “District Committee” will decide the
nomination method for candidates for the United States House of
Representatives; Plan at Art. VI, § D(1)(a) (providing that the
“Unit Committee” will decide the nomination method for
candidates for local and constitutional public offices). This
choice reflects the fact that Virginia law gives political
parties the unqualified right to make those decisions with
regard to their candidates for those offices. See Va. Code §
24.2–509(A). The Plan provision concerning the General
Assembly, however, has a special proviso that reflects the Act’s
27
potential to deny the Party the right to choose the nomination
method. Accordingly, it states:
The Legislative District Committee shall determine
whether candidates for Legislative District public
office shall be nominated by Mass Meeting, Party
Canvass, Convention or Primary, where permitted to do
so under Virginia Law.
Plan at Art. V, § D(1)(a) (emphasis added).
Central to these appeals is the question of how the
emphasized language (the “qualifying language”) applies if the
Act, which gives the nomination-method decision to an incumbent,
is unconstitutional. The Committee argues the Act is
unconstitutional and cannot be applied, thus giving the election
decision to the Committee. The Defendants contend that
“Virginia Law” includes the Act, even if it is unconstitutional.
In my view, the plain meaning of the Plan is the one that
the Committee urges. Both the United States Supreme Court and
the Supreme Court of Virginia have held that the law of a
particular state includes the United States Constitution, such
that an unconstitutional Virginia statute is no law at all. See
Howlett ex rel. Howlett v. Rose, 496 U.S. 356, 367 (1990)
(“[T]he Constitution and laws passed pursuant to it are as much
laws in the States as laws passed by the state legislature.”);
Ex parte Siebold, 100 U.S. 371, 376 (1879) (“An unconstitutional
law is void, and is as no law.”); Marbury v. Madison, 5 U.S.
137, 180 (1803) (“[A] law repugnant to the constitution is
28
void.”); Spiak v. Seay, 40 S.E.2d 250, 251 (Va. 1946) (“The
provision of the Constitution of the United States on interstate
extradition, together with the Acts of Congress on the subject,
are a part of the supreme law of the land and therefore a part
of the law of each State.”). For that reason, the ordinary and
natural meaning of “Virginia Law” does not include Virginia
statutes that are void because they violate the U.S.
Constitution.
Indeed, only days after we heard oral argument in the
present case, the Supreme Court held that language nearly
identical to that now before us unambiguously conveyed that very
meaning. See DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463, 469
(2015). In that case, DIRECTV entered into a service contract
with its customers that included an arbitration provision that
stated that it would be unenforceable if the “law of your state”
made waivers of class arbitration unenforceable. Id. at 466
(internal quotation marks omitted). Another section of the
contract provided that the arbitration provision “shall be
governed by the Federal Arbitration Act.” Id. (internal
quotation marks omitted). Two of DIRECTV’s customers brought
suit in 2008 against DIRECTV in a California state court seeking
damages for early termination fees that the customers alleged
violated California state law. See id. Invoking the
29
arbitration provision, DIRECTV requested arbitration. See id.
The state trial court denied the request. See id.
DIRECTV appealed to the California Court of Appeal, which
affirmed. See id. at 466-67. Under that court’s analysis, the
enforceability of the arbitration provision turned on the effect
of a rule of California state law that resulted from a 2005
California Supreme Court decision, Discover Bank v. Superior
Court, 113 P.3d 1100, 1110 (Cal. 2005), and which was embodied
in California statutory law as well (the “Discover Bank rule”). 4
See DIRECTV, 136 S. Ct. at 466-67. Under the Discover Bank
rule, the arbitration provision would have been unenforceable as
a matter of California state law. See id. However, in 2011,
the United States Supreme Court held that the Discover Bank rule
was preempted and invalidated by the Federal Arbitration Act
(“FAA”) because the rule “st[ood] as an obstacle to the
accomplishment and execution of the full purposes and objectives
4 Discover Bank held “that a waiver of class arbitration in
a consumer contract of adhesion that predictably involves small
amounts of damages and meets certain other criteria” that were
not contested in DIRECTV was “unconscionable under California
law and should not be enforced.” DIRECTV, Inc. v. Imburgia, 136
S. Ct. 463, 466 (2015) (alteration & internal quotation marks
omitted). The applicable California statutes referenced above
were sections 1751 and 1781(a) of California’s Consumers Legal
Remedies Act. See id. at 466-67.
30
of Congress” that the FAA embodied. AT&T Mobility LLC v.
Concepcion, 563 U.S. 333, 352 (2011).
Although it recognized that Concepcion had invalidated the
Discover Bank rule, see DIRECTV, 136 S. Ct. at 467, the
California Court of Appeal nonetheless believed that DIRECTV’s
entitlement to arbitration depended on the meaning of the
contractual phrase “law of your state,” see id. at 466.
Concluding that the parties intended that phrase to mean “the
law of California including the Discover Bank rule and
irrespective of that rule’s invalidation in Concepcion,” id. at
468, the court affirmed the lower court’s denial of DIRECTV’s
request to enforce the arbitration agreement, see id. at 467.
And the California Supreme Court denied discretionary review.
See id.
The United States Supreme Court then granted DIRECTV’s
petition for certiorari and reversed. The Court assumed that
the California Court of Appeal’s decision was correct as a
matter of state contract law, but nonetheless considered whether
that state law was consistent with the FAA. See id. at 468.
The Supreme Court concluded that in ruling that “law of your
state” included state laws that were invalidated by federal law,
the California court did not “place[] arbitration contracts on
equal footing with all other contracts.” DIRECTV, 136 S. Ct. at
468-69 (internal quotation marks omitted). The Supreme Court
31
offered many reasons for its conclusion, most of which related
to the fact that the California court’s interpretation could not
be justified in light of generally applicable law. 5 See id. at
468-71.
The Court began by considering the ordinary meaning of the
phrase “law of your state.” The Court concluded that the
natural meaning is “valid state law.” Id. at 469. In fact, the
Court determined that it would not even be reasonable to read
“law of your state” to include state law that was invalid under
the Supremacy Clause. See id. And the Court noted that it had
not found any contract case from any state “that interprets
similar language to refer to state laws authoritatively held to
be invalid.” Id.; see id. at 470 (“[W]e can find no similar
case interpreting the words ‘law of your state’ to include
invalid state laws.”).
The Court also noted that construing “law of your state” to
exclude law that was invalidated after the formation of the
contract would be consistent with applicable principles of
contract interpretation. See id. at 469. The Court
5
The Court also noted that particular language the Court of
Appeal used suggested that the court might have intended its
holding to be limited to the arbitration context. See id. at
470.
32
particularly cited California caselaw holding that plea
agreements, which are construed according to normal contract
principles, are “‘deemed to incorporate and contemplate not only
the existing law but the reserve power of the state to amend the
law or enact additional laws.’” Id. (quoting Doe v. Harris, 302
P.3d 598, 601-02 (Cal. 2013)). And the Court referred to the
fact that “judicial construction of a statute ordinarily applies
retroactively.” Id. (citing Rivers v. Roadway Express, Inc.,
511 U.S. 298, 312-13 (1994)).
In my view, the reasons cited by the Supreme Court in
DIRECTV also demonstrate that the phrase “Virginia Law” in the
Plan before us here cannot be construed to include invalid
Virginia statutes. Under the Supreme Court’s reasoning, the
ordinary meaning of the phrase “Virginia Law” is “valid
[Virginia] law,” and a reading that included invalid Virginia
statutes would not even be reasonable. Id. (emphasis in
original). Additionally, the contract and statutory principles
that the DIRECTV Court relied on provide further support this
interpretation, just as they supported the DIRECTV Court’s
similar interpretation. 6 See id.
6
Similar to the California caselaw cited by the Supreme
Court in DIRECTV, see id. at 469, the Supreme Court of Virginia
has held, in the context of interpreting a plea agreement, that
“contracts are deemed to implicitly incorporate the existing law
and the reserved power of the state to amend the law or enact
(Continued)
33
Because I would construe “Virginia Law” to encompass only
valid Virginia law, I would read “Virginia Law” – and Virginia
Code § 24.2-509(A) in particular – to “permit[]” the Committee
to choose the nomination method in the event that § 24.2-509(B)
is unconstitutional. See Va. Code § 24.2-509(A) (“The duly
constituted authorities of the political party for the district,
county, city, or town in which any other office is to be filled
shall have the right to determine the method by which a party
nomination for that office shall be made.”). And because I
would read the Plan as authorizing the Committee to choose the
nominating method in the event that § 24.2-509(B) is
unconstitutional, I do not agree with the district court’s
conclusion that it is the Plan itself that is the cause of the
parties’ alleged injuries and an obstacle preventing
redressability. 7 Accordingly, I would hold that the district
additional laws for the public welfare.” Smith v. Commonwealth,
743 S.E.2d 146, 150 (Va. 2013).
7The fact that no court has determined prior to the
initiation of this case that § 24.2-509(B) is unconstitutional
has no bearing on standing. Under DIRECTV’s reasoning,
“Virginia Law” excludes invalid Virginia statutes, including
unconstitutional statutes whose unconstitutionality had not yet
been recognized by any court at the time the Plan was adopted.
See DIRECTV, 136 S. Ct. at 466-71 (holding that the “law of your
state” excluded state laws that, after the formation of the
contract at issue – and after the initiation of the lawsuit at
issue – were held by the Supreme Court to be preempted by the
FAA). Consequently, if the Committee and Moxley are correct on
(Continued)
34
court erred in concluding that the Committee and Moxley failed
to establish standing under our Marshall decision.
B.
Defendants contend that, even if the Committee and Moxley
would otherwise have established standing, they failed to do so
because Virginia could have enacted legislation requiring a
particular nomination method without running afoul of the
Constitution. See Appellees’ brief at 29-32 (citing Miller v.
Brown, 503 F.3d 360, 368 (4th Cir. 2007)). However, even if
Defendants are correct that Virginia could have constitutionally
enacted such legislation, this argument at most goes to the
merits of the claims asserted in this case; it does not relate
to standing. See Arizona State Legislature v. Arizona Indep.
Redistricting Comm’n, 135 S. Ct. 2652, 2663-65 (2015) (Arizona
legislature challenged statute on basis that it deprived
legislature of its constitutional authority to initiate
redistricting; although Court concluded that legislature did not
have the authority it asserted, that point related only to the
the merits of their claims that § 24.2-509(B) is
unconstitutional, then they are also correct, under the
reasoning of DIRECTV, that “Virginia Law” does not include
§ 24.2-509(B) and that the Plan authorizes the Committee to
choose the nomination method.
35
merits of the legislature’s claim, not to its standing to assert
the claim).
The Committee alleged injuries from operation of the Act in
that it prevents it from selecting the nomination method for the
General Assembly position at issue here. Moxley alleged
injuries from the Act in that it was allowing his opponent to
choose the nominating mechanism that he believed would best
ensure his reelection. Both sought to have the Act declared
void so that the Committee’s designation of a convention would
be upheld and their injuries could be avoided. These
allegations were sufficient to establish that the dispute would
“be resolved . . . in a concrete factual context conducive to a
realistic appreciation of the consequences of judicial action,”
as the standing doctrine requires. Valley Forge Christian
College v. Americans United for Separation of Church & State,
Inc., 454 U.S. 464, 472 (1982). I therefore believe the
district court erred in dismissing this case for lack of
standing. 8
8The fact that Senator Hanger defeated Moxley in the
primary long ago does not moot this appeal because the issues
presented fit into the “capable of repetition, yet evading
review” exception to the mootness doctrine. See FEC v. Wisc.
Right to Life, Inc., 551 U.S. 449, 462 (2007). Although this
exception applies only if the issue is capable of repetition in
regard to the same plaintiff, see Stop Reckless Econ.
Instability Caused by Democrats v. FEC, 814 F.3d 221, 229-32
(4th Cir. 2016), there is a reasonable expectation that each of
(Continued)
36
II.
In sum, I would reverse the district court’s judgment
dismissing the complaints for lack of subject-matter
jurisdiction. I respectfully dissent from the majority’s
contrary decision.
the plaintiffs and intervenor Moxley will be subject to the same
action again in future elections, see North Carolina Right to
Life Comm. Fund for Indep. Political Expenditures v. Leake, 524
F.3d 427, 435 (4th Cir. 2008) (holding that constitutional
challenges to system of public financing for judicial elections,
brought by two political committees and a candidate, were not
mooted by the election even though neither the political
committees nor the candidate had specifically alleged an intent
to participate in future election cycles; concluding that “there
is a reasonable expectation that the challenged provisions will
be applied against the plaintiffs again during future election
cycles”; rejecting “the argument that an ex-candidate’s claims
may be ‘capable of repetition yet evading review’ only if the
ex-candidate specifically alleges an intent to run again in a
future election”).
37