547 F. App'x 695
6th Cir.2013Background
- BBC installs benches with advertising in Covington's public rights-of-way and near bus stops; Covington Ordinance O-2-09 bans such encroachments.
- O-2-09 creates exceptions for property placed in the right-of-way by governmental or quasi-governmental agencies, including benches and transit shelters.
- Covington removed BBC benches after enforcement; BBC sued, challenging the ordinance and later added TANK-related claims.
- District court granted Covington post-judgment injunctive relief under 28 U.S.C. § 2202, requiring BBC to remove benches from Covington rights-of-way.
- This court previously upheld the ordinance as constitutional in Bench Billboard I; the mandamus-like injunction at issue extends beyond that decision.
- Issues here include whether the post-judgment injunction was proper, whether BBC benches at TANK stops are exempt, and whether law-of-the-case precludes BBC's arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether post-judgment injunctive relief was proper | BBC argues the injunction oversteps or misapplies scope. | Covington argues DJA relief is appropriate to enforce the declaration and BBC's continued noncompliance. | Not an abuse of discretion; relief upheld. |
| Whether BBC benches at TANK bus stops are exempt under § 100.324(1) | BBC contends § 100.324(1) exempts BBC benches located at TANK facilities. | Exemption applies only to TANK’s own service facilities, not third‑party benches located on those facilities. | BBC benches at TANK bus stops are not exempt; ordinance applies. |
| Whether law-of-the-case precludes BBC's relitigating TANK-related issues | BBC seeks remand to brief the issue anew under law-of-the-case theory. | Law-of-the-case bars re-litigation of the same evidentiary premises decided in Bench Billboard I. | Law-of-the-case controls; remand denied. |
Key Cases Cited
- Wilton v. Seven Falls Co., 515 U.S. 277 (Supreme Court 1995) (district courts have discretion under the Declaratory Judgment Act)
- Jolivette v. Husted, 694 F.3d 760 (6th Cir. 2012) (deference to declaratory judgments in some contexts)
- Bays v. City of Fairborn, 668 F.3d 814 (6th Cir. 2012) (First Amendment injunctions reviewed de novo in some contexts)
- Sierra Brokerage Servs., Inc. v. SEC, 712 F.3d 321 (6th Cir. 2013) (abuse-of-discretion standard for injunctive relief under SEC actions)
- Westside Mothers v. Olszewski, 454 F.3d 532 (6th Cir. 2006) (exceptional-circumstances standard for law-of-the-case relief)
- In re Kenneth Allen Knight Tr. , 303 F.3d 671 (6th Cir. 2002) (law-of-the-case exceptions are narrow)
- United States v. Hughes, 505 F.3d 578 (6th Cir. 2007) (law-of-the-case principles binding on subsequent proceedings)
- Hanover Ins. Co. v. Am. Eng’g Co., 105 F.3d 306 (6th Cir. 1997) (law-of-the-case doctrine is discretionary and limited)
- Pipefitters Local 636 Ins. Fund v. Blue Cross Blue Shield of Mich., 654 F.3d 618 (6th Cir. 2011) (exceptional circumstances for reconsideration standard)
- Stryker Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 681 F.3d 819 (6th Cir. 2012) (precedent on related evidentiary issues and rulings)