People for Ethical Treatment of Animals, Inc. v. Gittens

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 10, 2004 Decided January 28, 2005
No. 02-7106
PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC.,
APPELLEE
v.
ANTHONY GITTENS, EXECUTIVE DIRECTOR,
DISTRICT OF COLUMBIA COMMISSION ON THE ARTS AND
HUMANITIES, AND DISTRICT OF COLUMBIA,
APPELLANTS
Consolidated with
Nos. 03-7190, 03-7195
Appeals from the United States District Court
for the District of Columbia
(02-cv00984)
Donna M. Murasky, Senior Litigation Counsel, Office of
the Attorney General for the District of Columbia, argued the
cause for appellants. With her on the briefs were Robert J.
Spagnoletti, Attorney General, and Edward E. Schwab, Deputy
Attorney General.
Arthur B. Spitzer argued the cause for appellee. With him
on the brief was Fritz Mulhauser.
2
Before: GINSBURG, Chief Judge, and RANDOLPH and
ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
Opinion concurring in part and dissenting in part filed by
Circuit Judge ROGERS.
RANDOLPH, Circuit Judge: Several years ago, an agency of
the District of Columbia sponsored a city-wide, outdoor exhibit
of polyurethane models of donkeys and elephants, each painted
and decorated by a different artist. The exhibit lasted five
months. The parties to these consolidated appeals argue about
whether, as the district court ruled, the agency violated the First
Amendment to the Constitution when it rejected a design
showing a circus elephant weeping from mistreatment. We do
not reach the constitutional issue because the case may be moot.
To explain why, we need to fill in some details about the exhibit.
In the fall of 2001, the District’s Commission on the Arts
and Humanities issued a “Call to Artists” for “Party Animals,”
a program intended to showcase local artists, attract tourists and
enliven the streets “with creative, humorous art.” “Party
Animals” would be the “largest public art project in the history
of the District of Columbia.” It would consist of pre-formed
sculptures of 100 donkeys and 100 elephants, four and one-half
feet tall and five feet long, installed at prominent city, federal
and private locations. The Commission invited artists to submit
designs for painting and decorating the models. If the
Commission’s selection committee approved a design, the artist
would receive a $1,000 honorarium and $200 for materials and
supplies. The Commission retained ownership of the decorated
donkeys and elephants and planned to sell them at auction after
the exhibit ended.
3
The written announcement stated that “Party Animals”
would showcase the “whimsical and imaginative side of the
Nation’s Capital” and that the Commission was looking “for
artwork that is dynamic and invites discovery,” “original and
creative,” “durable” and “safe.” The Commission would not
“allow direct advertising of any product, service, a company
name, or social disrespect,” and would impose “restrictions
against slogans and inappropriate images.” All designs “were
subject to the Selection Committee’s decision.” More than
1,000 artists entered designs, most of which the Selection
Committee rejected.
The Arts Commission also announced that it would accept
designs outside of the general artistic competition from
individuals or organizations who paid $5,000 or more to be
high-level sponsors of the program. These sponsors could
choose their own artist to decorate a donkey or elephant, which
would be placed in a “prime public location.” The written
announcement stated that the Arts Commission “reserves the
right of design approval” and would own the decorated donkey
or elephant.
On the base of each sculpture was a plaque with the artist’s
name and the following:
DC Commission on the Arts & Humanities
Anthony A. Williams, Mayor
www.partyanimalsdc.org
An organization contributing $2,000 or more was entitled to
have its name on the plaque.
In mid-March 2002, People for the Ethical Treatment of
Animals, Inc. -- PETA -- submitted a sponsorship package, a
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check for $5,000, and a sketch of its proposed design, drawn by
a cartoonist. PETA describes itself as a nonprofit corporation,
founded in 1980, to support “the principle that animals are not
ours to eat, wear, experiment on, or use for entertainment.”
Brief of Appellee at 5. The sketch PETA submitted depicted an
elephant with a sign tacked to its side. The sign read:
The CIRCUS is Coming
See: Torture
Starvation
Humiliation
All Under the Big Top
A selection committee member informed PETA that its design
was unacceptable. Several days later, PETA submitted two new
designs, one of a happy circus elephant, the other of a sad,
shackled circus elephant with a trainer poking a sharp stick at
him. The committee member called PETA’s representative to
say that the Commission had accepted the happy elephant, but
rejected the sad one. PETA then submitted another design,
depicting a shackled elephant crying. A sign tacked to the
elephant’s side read: “The Circus is coming. See SHACKLES -
BULL HOOKS - LONELINESS. All under the ‘Big Top.’” The
Commission rejected this design. According to an affidavit of
the Commission’s executive director, PETA’s proposal was “a
political billboard, not art, and unlike any other design
submission, it sought merely to promote a single issue and was
not an artistic expression consistent with the goals, spirit and
theme of the art project. The “Party Animals” arts project was
designed to be festive and whimsical, reach a broad based
general audience and foster an atmosphere of enjoyment and
amusement. PETA’s proposed . . . design did not compliment
these goals, and indeed was contrary to the Party Animals’
expressive, economic, aesthetic, and civic purpose.”
5
The “Party Animals” exhibit opened at the end of April
2002. One month later, PETA filed an action under 28 U.S.C.
§ 1983 against the executive director of the Arts Commission
and the District of Columbia, seeking a preliminary and
permanent injunction and damages for violation of its First
Amendment rights. While the case was pending, PETA
submitted still another design to the Commission, slightly
altering its previous submission. Again the Commission
rejected it, for reasons similar to those given for rejecting
PETA’s previous submission. All the while, the Commission
held PETA’s $5,000 check without cashing it.
After proceedings unnecessary to recount, the district court
issued a preliminary injunction, finding that the Commission
had violated PETA’s freedom of speech and requiring the
Commission to display PETA’s final elephant. People for the
Ethical Treatment of Animals v. Gittens, 215 F. Supp. 2d 120(D.D.C. 2002). The District then cashed PETA’s check and
PETA had its elephant installed at Connecticut Avenue and Q
Street, N.W. It remained there from the end of August until the
end of September 2002, when “Party Animals” closed. In
November 2003, the court issued a memorandum opinion and
order granting PETA’s motion for summary judgment, denying
the District’s cross-motion, and awarding PETA “$4,000 in
damages.” In late December 2003, the court issued the another
order, stating:
Upon consideration of Plaintiffs’ [sic] Motion for an
Order Directing Entry of Judgment, of defendant’s [sic]
consent thereto, and of the entire record herein, it is hereby
ORDERED, that the motion is GRANTED; and it is
further
ORDERED, that the Clerk shall enter judgment in
6
favor of plaintiffs [sic] and against the District of Columbia
in the amount of $4,000.
The Clerk of the court entered the judgment on December 23,
2003.
The District noted an appeal from the order granting the
preliminary injunction (No. 02-7106), from the November 2003
memorandum and order granting summary judgment (No. 03-
7190), and from the December 2003 judgment for $4,000 (No.
03-7195).
The “Party Animals” exhibit is long gone. But the parties
assume the December 2003 judgment awarding PETA $4,000
keeps the First Amendment controversy alive.1 We need to
examine their assumption carefully. There is “a long line of
Supreme Court pronouncements counseling judicial restraint in
constitutional decisionmaking, the most notable of which is
Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-47
(1936) (Brandeis, J., concurring).” Kalka v. Hawk, 215 F.3d 90,
97 (D.C. Cir. 2000). We therefore must assure ourselves that
the First Amendment controversy between PETA and the
District has not expired.
The operative portion of the district court’s opinion states:
[T]he plaintiff contends that it should be awarded money
1
Although the District noted an appeal from the November
memorandum and order, the order was not “set forth on a separate
document,” FED. R. CIV. P. 58(a), and therefore was not an effective
judgment from which an appeal could be taken. See Kidd v. Dist. of
Columbia, 206 F.3d 35, 37 (D.C. Cir. 2000). Even so, the reasoning
contained in the court’s November memorandum underlies the
December judgment.
7
damages for its loss of First Amendment rights caused by
the defendants’ failure to display its sculpture design. It is
undisputed that the $5,000 sponsorship level entitled the
sponsor to have its sculpture placed in a prominent place in
the city for the five months of the Party Animals display.
As a result of the time necessary to litigate the court-
ordered injunction, the plaintiff’s sculpture was only on
display in a prominent location for one month. The plaintiff
believes, and the defendants have not argued otherwise, that
it is entitled to a refund, in essence, for the four months it
was excluded from the public eye. The Court agrees, and
accordingly awards the [plaintiff] $4000 in damages.
People for the Ethical Treatment of Animals v. Gittens, No. 02-
00984, slip op. at 6 (D.D.C. Nov. 14, 2003).
If the district court awarded PETA the $4,000 as
compensatory damages for a violation of its First Amendment
rights, the District’s appeal from the grant of summary judgment
is not moot. See, e.g., Powell v. McCormack, 395 U.S. 486,
497-98 (1969). But if PETA’s recovery did not turn on the
validity of its First Amendment claims -- and there are several
indications that it did not -- the $4,000 award could not save the
constitutional issue from mootness. Although the court began
by noting PETA’s contention that it was entitled to $4,000 for
the “loss of First Amendment rights,” the court ended by calling
the $4,000 a “refund, in essence, for the four months it was
excluded from the public eye.” This may suggests that the court
was simply enforcing the terms of the “Party Animals” program
and that PETA would have received the refund even if it had not
prevailed on its constitutional claim. See RESTATEMEN T
(SECOND) OF CONTRACTS § 240 cmt. d, illus. 5 (1981). Or the
court could have been ordering relief in the nature of restitution,
relief that does not depend on the defendant’s wrongdoing. See
DAN B. DOBBS, REMEDIES § 4.1, at 224 (1973) (“restitution is
8
generally awarded when the defendant has gained a benefit that
it would be unjust for him to keep, though he gained it
honestly”); Rapaport v. United States Dep’t of the Treasury, 59
F.3d 212, 217 (D.C. Cir. 1995). According to the “Party
Animals” announcement, $5,000 entitled PETA to have an
animal displayed in a prominent place for five months. PETA
wound up getting only one month. The District admitted at oral
argument that if PETA’s animal had never been displayed, the
District would have refunded the entire $5,000. This is
consistent with the fact that during the first four months of the
exhibit, while the District was refusing to accept PETA’s
designs, it did not cash PETA’s check.
It is true that PETA’s complaint did not seek a refund under
the terms of the program. But this is not conclusive. In addition
to the constitutional claim, brought under 42 U.S.C. § 1983, the
complaint requested “such other and further relief as the Court
may deem just and proper.” This language permits a district
court to award damages for breach of contract even when the
plaintiff has not pled a contract claim. See, e.g., U.S. Naval Inst.
v. Charter Communications, Inc., 936 F.2d 692 (2d Cir. 1991).
Federal Rule of Civil Procedure 54(c) also empowers courts to
grant the relief to which the prevailing party is entitled,
regardless whether the party specifically requested the relief in
its complaint.
We recognize the principle that when a court finds a
constitutional violation in an action seeking monetary relief
under 42 U.S.C. § 1983, the court (or jury) must at least award
nominal damages. See Farrar v. Hobby, 506 U.S. 103, 112
(1992); Memphis Community Sch. Dist. v. Stachura, 477 U.S.
299, 308 n.11 (1986); Carey v. Piphus, 435 U.S. 247, 266
(1978); Hobson v. Wilson, 737 F.2d 1, 59-60 (D.C. Cir. 1984);
Kerman v. City of New York, 374 F.3d 93, 131-32 (2d Cir.
2004); Norwood v. Bain, 143 F.3d 843, 856 (4th Cir. 1998),
9
aff’d en banc in relevant part, 166 F.3d 243 (1999); Risdal v.
Halford, 209 F.3d 1071, 1072 (8th Cir. 2000); Schneider v.
County of San Diego, 285 F.3d 784, 794 (9th Cir. 2002); Searles
v. Van Bebber, 251 F.3d 869, 879 (10th Cir. 2001). We assume,
without deciding, that a district court’s award of nominal
damages -- $1 -- prevents a case from becoming moot on appeal.
See Utah Animal Rights Coalition v. Salt Lake City Corp., 371
F.3d 1248, 1262 (10th Cir. 2004) (McConnell, J., concurring);
cf. Arizonans for Official English v. Arizona, 520 U.S. 43, 71
(1997). Even so, in this case if the $4,000 merely represented
restitution or a refund under the terms of the “Party Animals”
program that was not dependent on a constitutional violation,
PETA has forfeited any such claim to nominal damages. See
Oliver v. Falla, 258 F.3d 1277, 1281-82 (11th Cir. 2001). PETA
told the district court that if the case went to trial it would seek
damages greater than $4,000 for the District’s alleged First
Amendment violation. But the case did not go to trial; the
district court awarded only the uncontested $4,000; and PETA
did not cross-appeal.
In short, it is unclear whether the district court’s award of
$4,000 was dependent upon its finding of a constitutional
violation. Ordinarily, we would remand the record for
clarification and end our opinion at this point. But a remand is
unnecessary if, as the District argues, its appeal from the
preliminary injunction continues to present a live controversy
under the First Amendment. See Christian Knights of Ku Klux
Klan Invisible Empire, Inc. v. Dist. of Columbia, 972 F.2d 365,
371 n.2 (D.C. Cir. 1992) (“KKK”).
The preliminary injunction clearly rested on the First
Amendment, but it expired at the close of the “Party Animals”
exhibit more than two years ago. “An appeal from an order
granting a preliminary injunction becomes moot when, because
of the defendant’s compliance or some other change in
10
circumstances, nothing remains to be enjoined through a
permanent injunction.” KKK, 972 F.2d at 369; see Univ. of
Texas v. Camenisch, 451 U.S. 390, 394-95, 398 (1981). The
District seeks to rescue its appeal in No. 03-7195 on the basis of
the doctrine that issues or wrongs “capable of repetition, yet
evading review” are not moot.
We use the words “issues or wrongs” because Supreme
Court opinions are not uniform in their description of exactly
what must be repeatable in order to save a case from mootness.
In the decision giving rise to the doctrine, the Court spoke of
“short term orders [of an agency], capable of repetition, yet
evading review.” S. Pac. Terminal Co. v. ICC, 219 U.S. 498,
515 (1911). Later cases speak not of orders, but of repetition of
the “controversy,” e.g., Olmstead v. L.C. ex rel. Zimring, 527
U.S. 581, 594 n.6 (1999); Norman v. Reed, 502 U.S. 279, 288
(1992); Int’l Org. of Masters, Mates & Pilots v. Brown, 498 U.S.
466, 473 (1991), or “the questions presented,” Sosna v. Iowa,
419 U.S. 393, 399-400 (1975). Other cases put the matter in
terms of the plaintiff suffering the “same wrong again,” Lewis
v. Cont’l Bank Corp., 494 U.S. 472, 481 (1990); Los Angeles v.
Lyons, 461 U.S. 95, 109, 111 (1983), or being subjected to the
“same action again,” Weinstein v. Bradford, 423 U.S. 147, 149
(1975); Spencer v. Kemna, 523 U.S. 1, 17-18 (1998); Lewis, 494
U.S. at 481; Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per
curiam) (quoting Weinstein). One opinion, Honig v. Doe, 484
U.S. 305 (1988), uses several variations, see id. at 318 (same
“deprivation”); id. at 319 n.6 (same controversy); id. at 320(same injury). For our part, we too have been less than precise,
sometimes requiring the issue, and sometimes the wrong, to be
capable of repetition. E.g., WorldCom, Inc. v. FCC, 308 F.3d 1,
10-11 (D.C. Cir. 2002) (issue); Pharmachemie B.V. v. Barr
Labs., Inc., 276 F.3d 627, 632-33 (D.C. Cir. 2002) (issue); The
Honorable John H. McBryde v. Comm. to Review Circuit
Council Conduct, 264 F.3d 52, 55 (D.C. Cir. 2001) (injury);
11
Time Warner Entm’t Co. v. FCC, 240 F.3d 1126, 1128 (D.C.
Cir. 2001) (issue); KKK, 972 F.2d at 369, 370 (issue); Clarke v.
United States, 915 F.2d 699, 703-04 (D.C. Cir. 1990) (en banc)
(wrong).
We treat these various formulations as equivalent. The
“wrong” that is, or is not, “capable of repetition” must be
defined in terms of the precise controversy it spawns. To
illustrate, in the KKK case, the Klan sought a permit to march
thirteen blocks along Constitution Avenue; the District, fearing
a violent response from onlookers, granted a permit for only half
the distance; the district court issued a preliminary injunction
allowing the Klan to march the thirteen blocks. By the time the
case reached this court on the District’s appeal, the march was
over. If one defined the “wrong” as the District’s refusal to
allow the Klan to march along the entire route it requested, that
would tell us nothing about the constitutional controversy or the
likelihood of its recurrence. There are any number of reasons --
some legitimate and some not -- why the authorities might cut
back on the length of a parade: the time of the march and its
route might interfere with rush hour traffic; there might be
conflicting events; one portion of the street might be undergoing
repairs; the message of the marchers might be disfavored; and
so forth. One function of the “capable of repetition” doctrine is
to satisfy the Constitution’s requirement, set forth in Article III,
that courts resolve only continuing controversies between the
parties. Pharmachemie B.V., 276 F.3d at 633 (quoting Cent.
Soya Co. v. Consol. Rail Corp., 614 F.2d 684, 689 (7th Cir.
1980)). That function cannot be fulfilled unless the alleged
“wrong” is put in terms of the legal questions it presents for
decision. In the KKK case, the “wrong” consisted of the
District’s refusal, in alleged violation of the First Amendment,
to grant a permit because the march would provoke violence.
This is the way we defined the controversy in order to determine
whether it was “capable of repetition, yet evading review.”
12
KKK, 972 F.2d at 369-70.
For a controversy or wrong to be “capable of repetition,”
there must be at least “a reasonable expectation that the same
complaining party would be subjected to the same action again.”
Weinstein v. Bradford, 423 U.S. at 147. To discover the nature
of the alleged wrong to PETA, and the First Amendment issues
presented, we must initially look to its complaint. Clarke, 915
F.2d at 703-04 (plurality opinion).
One thing to notice about the complaint is what is not
alleged. Donkeys and elephants are the symbols of the two
major political parties. Restricting the exhibit to these symbols
excludes the symbols of all other political parties. But there is
no allegation that for this reason the “Party Animals” program
lacked content neutrality in violation of the First Amendment.
See, e.g., City of Cincinnati v. Discovery Network, Inc., 507 U.S.
410 (1993). Nor is there any charge that the Commission’s
written design criteria -- no advertising, no “social disrespect,”
no “slogans and inappropriate images” -- were unconstitutional
on their face. Rather, the complaint alleged that “[e]ach of
PETA’s proposed designs satisfied the Party Animals ‘design
criteria’ as published and as applied by the Commission.”
PETA thus concedes that the Commission “would have had
a leg to stand on in rejecting PETA’s design” if it had accepted
“only whimsical or lighthearted designs” and had rejected “all
designs with political or social messages.” Brief of Appellee at
31. But, according to PETA, the Commission did not do so.
Instead, it approved “numerous designs that were not
whimsical,” such as tributes to heroes and victims of the
September 11 terrorist attacks, and designs commemorating civil
rights leaders. Id. at 30. The Commission also approved
designs “with political or social messages or slogans,” such as
designs incorporating the “butterfly ballot” used in Palm Beach
13
County, Florida in the 2000 presidential election, and a design
covered with quotations by politicians or about politics. Id. at
11-12. PETA’s argument -- with which the district court agreed
-- is that the Commission modified its design criteria in practice
and that “Party Animals” was a “limited public forum,” at least
for those who donated $5,000 or more. Id. at 34, citing inter
alia Rosenberger v. Rector & Visitors of Univ. of Virginia, 515
U.S. 819 (1995); Lamb’s Chapel v. Ctr. Moriches Union Free
Sch. Dist., 508 U.S. 384 (1993). PETA’s conclusion, with
which the district court also agreed, is that the Commission
therefore engaged in viewpoint or content discrimination, in
violation of the First Amendment, when it rejected PETA’s
designs. The District, of course, disagrees. It argues that as a
patron of the arts, the Commission had discretion to select
“those messages it wants to promote without running afoul of
the First Amendment.” Brief for Anthony Gittens, et al. at 23,
citing inter alia Finley v. Nat’l Endowment for the Arts, 524
U.S. 569 (1998); Arkansas Educ. Television Comm’n v. Forbes,
523 U.S. 666 (1998); and Rust v. Sullivan, 500 U.S. 173 (1991);
see also United States v. Am. Library Ass’n, 539 U.S. 194(2003) (plurality opinion). The District also attempts to
distinguish the non-whimsical designs it approved, some of
which contained slogans and political messages, in order to
show that the Commission reasonably rejected PETA’s
submissions as “political billboards.” Brief for Anthony Gittens,
et al. at 31-32.
Given these claims, the controversy is highly fact-specific.
PETA thinks the decision turns on exactly what design criteria,
written and unwritten, the Commission actually employed,
whether PETA’s payment of $5,000 to be a sponsor put it on a
different track than the competition open to all artists, and
whether, in light of the Commission’s approval of numerous
designs that contained civic commentary or political messages
or non-whimsical statements, the rejection of PETA’s designs
14
constituted content or viewpoint discrimination in violation of
the First Amendment. To conclude that a dispute like this would
arise in the future requires us to imagine a sequence of
coincidences too long to credit. The District would have to
sponsor another such public arts display; it would have to call
upon private parties to participate in the design of the objects,
while it retained ownership of the resulting artwork; in light of
the particular art, PETA would have to believe it could advance
its cause by participating in the program; PETA would have to
submit a proposed design; the Commission would have to reject
it as inconsistent with Commission’s criteria; at the same time,
the Commission would have to approve other designs not
meeting its criteria; and those non-conforming designs would
have to be analogous to the design PETA submitted.
We are told that after “Party Animals,” the District
sponsored “PandaMania” -- an outdoor exhibit of sculptures of
panda bears designed by private artists. We also know that New
York City had an outdoor exhibit of decorated cows, that one of
PETA’s two designs was rejected, that it sued for injunctive
relief (and damages), and lost. People for the Ethical Treatment
of Animals v. Giuliani, 105 F. Supp. 2d 294 (S.D.N.Y. 1993).
We think both of these events tends to demonstrate that the
issues here would not recur.
As to “PandaMania,” it too was an outdoor animal exhibit
run by the District. But for reasons not in the record, PETA did
not participate in it. As to the cow exhibit in New York, the
issues in PETA’s suit were different than those presented here.
There was no credible evidence that the New York authorities
had engaged in viewpoint discrimination by requiring PETA to
adhere strictly to certain design criteria while the authorities
departed from the criteria for other submissions. Yet, as
PETA’s arguments in this court reveal, such evidence is at the
heart of its case against the District. There are other significant
15
differences but we see no need to dwell on them. The essential
point is that the case before us is highly dependent upon a series
of facts unlikely to be duplicated in the future. We have
recognized before that a “legal controversy so sharply focused
on a unique factual context” would rarely “present ‘a reasonable
expectation that the same complaining party would be subjected
to the same actions again.’” Spivey v. Barry, 665 F.2d 1222,
1234-35 (D.C. Cir. 1981) (quoting Weinstein, 423 U.S. at 149).
But if we are wrong about the possibility of repetition, we
would still find the preliminary injunction moot because we are
unconvinced that if a controversy of this sort occurred again it
would evade judicial review. It is fair to assume that in any
future action against the District, PETA would sue for an
injunction and damages under 42 U.S.C. § 1983, which
authorizes equitable relief and compensatory damages against
any “person” who, under color of law, deprives another of a
constitutional right. See Stachura, 477 U.S. at 309-10.
Municipalities may be considered “persons” liable under § 1983
“only if their agents acted pursuant to municipal policy or
custom.” Warren v. Dist. of Columbia, 353 F.3d 36, 38 (D.C.
Cir. 2004). The District of Columbia is a municipality for the
purpose of § 1983. See Brown v. United States, 742 F.2d 1498,
1500 n.2 (D.C. Cir. 1984) (en banc). The action of an official
with final decision-making authority in a particular area can
amount to a municipal “policy.” See McMillian v. Monroe
County, 520 U.S. 781 (1997); Bd. of Comm’rs v. Brown, 520
U.S. 397 (1997); Pembaur v. Cincinnati, 475 U.S. 469 (1986).
If PETA brought such a suit in the future, the controversy
would not evade review in this court, or in the Supreme Court.
See KKK, 972 F.2d at 369-70. The grant or denial of
compensatory damages for a constitutional violation would
prevent the case from becoming moot after the exhibit ended.
Arkansas Educational Television Commission v. Forbes, 523
16
U.S. 666 (1998), illustrates the point. A state-owned public
broadcaster sponsored a debate between the Republican and
Democratic candidates in an upcoming congressional election.
Forbes, an independent candidate, brought an action against the
broadcaster, claiming that it had violated the First Amendment
by excluding him. The district court denied a preliminary
injunction and the debate went forward without him. But the
case remained alive, in the court of appeals and in the Supreme
Court, because Forbes coupled his injunction action with a claim
for damages under § 1983. See, e.g., Powell v. McCormack, 395
U.S. 486, 497-98 (1969).
In short, the First Amendment controversy in this case
cannot be treated as capable of repetition but evading review.
Mootness may be avoided only if the district court, on remand
of the record, determines that the $4,000 award to PETA was
contingent on the District’s alleged violation of the First
Amendment.
The appeal in No. 03-7190 is therefore dismissed, see FED .
R. CIV. P. 58(a). The appeal in No. 02-7106 is dismissed as
moot. In No. 03-7195, the record is remanded to the district
court to clarify whether its $4,000 award rested on its finding of
a First Amendment violation. See D.C. CIR. R. 41(b); United
States v. Williams, 754 F.2d 1001, 1002-03 (D.C. Cir. 1985).
So ordered.
ROGERS, Circuit Judge, concurring in part and dissenting in
part: While the court must take care to ensure that a
constitutional issue is properly before it, Op. at 6, the court
strains, in my view, to remand the record premised on a
contorted reading of the district court’s opinion. Id. at 7-8. In
addition, the court reaches the unfounded conclusion that PETA
has forfeited any claim to nominal damages for the violation of
its First Amendment rights, and ignores PETA’s claim for
compensatory damages. Id. at 9. Because there is no occasion
for a remand, I respectfully dissent to the remand in No. 03-
7195.
The district court’s Memorandum Opinion and Order
granting summary judgment to PETA found that the District of
Columbia had violated PETA’s First Amendment rights; the
district court found no other violation as a basis for granting
judgment to PETA. In what this court styles as “[t]he operative
portion of the district court’s opinion,” the district court in
awarding PETA judgment refers to PETA’s claim that “it should
be awarded money damages for its loss of First Amendment
rights,” and refers to its own monetary award as “$4,000 in
damages.” Id. at 6-7 (quoting the district court). The district
court’s language is precise - it awarded “damages,” and in an
amount that is not nominal. While the district court also refers
to “a refund” in recounting PETA’s argument, the district
court’s reference is to “a refund, in essence,” suggesting an
effort to quantify the amount of damages, and not, as the court
speculates, to award a refund on a separate and non-existent
contract claim. See id. at 7. The qualified reference in
recounting a party’s argument presents no basis to go behind the
district court’s plain words.
In holding that the district court was empowered to grant a
refund even though PETA did not specifically request a contract
remedy, the court relies on Federal Rule of Civil Procedure
2
54(c), Op. at 8, which provides that “every final judgment shall
grant the relief to which the party in whose favor it is rendered
is entitled, even if the party has not demanded such relief in the
party’s pleadings.” However, Rule 54(c) does not provide that
the court may award relief for a new, unstated claim. To the
contrary, Federal Rule of Civil Procedure 8(a)(2) requires a
complaint to state “the claim showing that the pleader is entitled
to relief,” Fed. R. Civ. P. 8(a)(2), see Conley v. Gibson, 355 U.S.
41, 47 (1957), and after judgment on the merits it is too late to
inject a new contractual claim into the litigation. The court’s
reliance on United States Naval Institute v. Charter
Communications, Inc., 936 F.2d 692 (2d Cir. 1991), Op. at 8, is
misplaced, for the Second Circuit was determining the relief to
which a party already had been deemed “entitled” to recover for
a breach of contract, and mentioned Rule 54(c) only in that law-
of-the-case context. U.S. Naval Inst., 936 F.2d at 696.
Additionally, the court’s conclusion that PETA forfeited its
claim for nominal damages is unfounded. While the court
purports to recognize the principle that PETA would be entitled
to at least an award of nominal damages for the violation of its
First Amendment rights, Op. at 8, the court avoids deciding
whether this entitlement would prevent mootness, if the district
court advises on remand that the $4,000 constitutes only a
refund, by holding that PETA has forfeited such claim. Id. at 9.
The court unreasonably concludes that PETA should have
recognized the contorted reading the court gives the district
court’s award of “$4,000 in damages” and filed a cross-appeal
for nominal damages. See id. The court points to PETA’s
statement that if the case went to trial it would seek “damages
greater than $4,000.” Id. But this statement evinces PETA’s
view that the amount it would be awarded upon the grant of
summary judgment would be damages, not a refund on a
contract claim. PETA’s statement clearly is not an intentional
and knowing waiver of a right, see, e.g., Johnson v. Zerbst, 304
3
U.S. 458, 464 (1938), but it also is not a forfeiture, which can
arise only upon the “failure to make the timely assertion of a
right.” United States v. Olano, 507 U.S. 725, 733 (1993).
PETA timely sought compensatory or, alternatively,
nominal damages in the district court. PETA’s amended
complaint, filed pursuant to 42 U.S.C. § 1983 and the
Declaratory Judgment Act, 28 U.S.C. § 2201-2002, requested
“actual damages for the loss of its First Amendment rights as it
may prove at trial, or at a minimum nominal damages;” its
motion for summary judgment sought “damages in the amount
of $4,000 as compensation for [the First Amendment]
violation.” Without notice that the award of “$4,000 in
damages” might only be a refund, PETA cannot have forfeited
its claim for compensatory or nominal damages when it did not
cross-appeal. See Banks v. Horn, 271 F.3d 527, 534 (3d Cir.
2001), rev’d on other grounds, Horn v. Banks, 536 U.S. 266(2002). No Federal Rule put PETA on notice that a cross-appeal
for compensatory or nominal damages was necessary. Cf. Fed.
R. Civ. P. 51(a) & (c); Penn. v. Harris, 296 F.3d 573, 577 (7th
Cir. 2002); Oliver v. Falla, 258 F.3d 1277, 1281-82 (11th Cir.
2001); Alexander v. Riga, 208 F.3d 419, 429 (3d Cir. 2000),
cert. denied, 531 U.S. 1069 (2001). Rule 54(c), relied on by the
court, Op. at 8, does not suggest that PETA’s requested relief for
“damages in the amount of $4,000 as compensation” for
violation of its First Amendment rights -- to which the district
court found PETA was “entitled” -- can be ignored because
PETA’s complaint also includes boilerplate language requesting
such other relief as may be appropriate. See Op. at 8.
Under the circumstances, there was no reason for PETA to
suppose that it had not been awarded compensatory damages,
much less any damages, for the violation of its First Amendment
rights, particularly as such supposition would impute legal error
to the district court, and to cross-appeal for an award of
4
compensatory or nominal damages. But even assuming a
forfeiture of a claim for nominal damages, were the district court
on remand to advise that its award to PETA of “$4,000 in
damages” was, in fact, only a refund on a contractual claim,
PETA’s claim for compensatory damages would remain.
PETA’s constitutional claim, then, could not be dismissed on
mootness grounds. Op. at 7 (citing Powell v. McCormack, 395
U.S. 486, 497-98 (1969)). The reason for a remand thus
evaporates.
I concur in the dismissal of the District of Columbia’s
appeal in No. 03-7190 from the November 2003 memorandum
opinion and order granting summary judgment. Id. at 16. While
I concur in dismissing the appeal in No. 02-7106 from the order
granting the preliminary injunction as moot, id. at 10, 16, I do so
only to the extent that the court concludes PETA’s First
Amendment claim is not an issue evading judicial review. Id. at
15.