Flanigan's Enterprises, Inc. of Georgia v. City of Sandy Springs, Georgia

sentencing We truthfully this enhancement. ad without defendant whether the falsely deny affirm, addi court in all other mitted did district re cmt. § Id. 3E1.1 tional relevant conduct. spects. n.l, silent a defendant remain While PART, IN VACATED AFFIRMED beyond respect conduct with relevant AND IN PART. REMANDED conviction, who offense defendant falsely relevant conduct that denies in a true acted

court has determines of re acceptance

manner inconsistent with vein, af In this

sponsibility. Id. we have accep court's

firmed denial district responsibility when

tance defendant sentencing his

downplayed culpability conduct. frivolously contested relevant ENTERPRISES, INC. FLANIGAN’S Sammour, United States Visuals, GEORGIA, OF Fantastic — (11th Cir.), denied, cert. LLC, Plaintiffs-Appellants, —, L.Ed.2d (2016). Davenport, Henry, G. Melissa Marshall Here, the district court did Intervenors-Plaintiffs-Appellants, denying an clearly err acceptance-of- adjustment. The responsibility court deter preponderance the evidence

mined SPRINGS, CITY SANDY OF carrier, despite mail Tejas pushed GEORGIA, Defendant- acquitted of that fact that he was Appellee. government trial. The conduct at has No. 14-15499 proof proving appli lower burden cability guidelines than enhancements United States Appeals, trying has in And the case. district Circuit. Eleventh trial, through judge, sat was in who than position we make credi better 2017) (August bility determinations. Tejas required to was not admit

While carrier, pushed the mail in order he responsibility,

clearly Tejas accept went

beyond mere silence as this issue to insist that he pushed

continued had not light In of that affirmative

her. denial conduct, cannot say that the

relevant we clearly in denying erred court

district

adjustment acceptance responsibili- for

ty. § cmt. 3E1.1 n.l. See U.S.S.G.

III. stated, sum, reasons application

vacate the enhancement victims, under number U.S.S.G. 2B1.1(b)(2)(A)(i),

§ and we for re- remand Wiggins, Wiggins Law

Cary Stephen ATLANTA, GA, Plaintiffs-Ap- Group, pellants. Firm, Goodmark, Law

Craig Goodmark DECATUR, GA, LLC, Gerald Richard Weber, Weber, Jr., Gerry Offices Law Wolf, ATLANTA, GA, LLC, Brett Adam Kane, Carr & Peiffer Wolf Abdullah Rosea CA, LLP, FRANCISCO, for Interve- SAN nors-Appellants. Harvey Gray, Bergthold, S. D.

Scott PLLC, Bergthold, of D. Law Office Scott CHATTANOOGA, TN,. Gray, Harvey S. Brieske, Moffett & Gray Rust Amand St. ATLANTA, GA, LLP, Defendant-Ap- for pellee. CARNES, Judge, ED Chief

Before WILSON, HULL, MARCUS, TJOFLAT, PRYOR, MARTIN, JORDAN, WILLIAM CARNES, ROSENBAUM, JULIE JILL ANDERSON,* PRYOR, and Circuit Judges.** ANDERSON, Judge: Circuit rehearing en banc to review granted We constitutionality municipal of a ordi- devices prohibiting nance the sale sexual Supreme' Court light recent several which, argued, it call into decisions vitality this question the continued Attorney Court’s decision Williams (Williams IV), General 2004). agreed to take the After we banc, City repealéd en the defendant case portion municipal of its challenged thus, and, are confronted with code ** * joined Judge Newsom Kevin Judge Anderson elected to -R. Lanier C. Senior participate in August and did pursuant to 28 participate in this decision proceedings. 46(c). these en banc § U.S.C. jurisdictional question of moot- severing. threshold order Inserection’s challenge ness. see no basis prohibition Because we reasonable the Ordinance’s on the sale concluding for ordinance will that the from sexual devices remainder prayer nomi- reenacted and because pending challenges to pro- other Code itself, damages, by result, nal insufficient As a appeal visions. this involves jurisdictional satisfy require- Ill’s challenge Article City’s ban ments, Accordingly, moot. sale of sexual devices. dismissed,

appeal must be Severing challenges the two allowed ad- parties ditional affected to intervene Background I. instant case without slowing progress Sandy Springs, litigation. Accordingly, (the Georgia, “City”) enacted into law sev- granted district court timely motion to alia, that, provisions prohibited eral inter intervene intervenors-appellants Melis- City. the sale of sexual devices within Davenport sa (“Davenport”) and Marshall (the Specifically, Ordinance 2009-04-24 (“Henry”). G. Henry is a Davenport Geor- “Ordinance”), codified Section 38-120 of gia multiple resident who from suffers (the City’s Code Ordinances and uses sclerosis sexual devices with her “Code”), criminalized the commercial dis- husband facilitate intimacy. She seeks to material, tribution obscene which de- Sandy sexual purchase Springs devices “[a]ny designed fined include device for her own use and to sexual sell devices marketed as useful stim- primarily in Sandy Springs others who suffer genital organs.” Sandy ulation of human the same or a similar condition. Hen- Ga., § Springs, 38- Code Ordinances Georgia resident, ry, also a anis who artist 120(c). devices in uses sexual his artwork. He purchase Shortly passage, group Sandy its to in after seeks sexual devices businesses, here, including, private, Springs activity as relevant for his own sexual Visuals, LLC, in plaintiff-appellant Fantastic and for use his artwork. He also seeks (“Inserection”),1 Inserection, brought City. to artwork in Inserection sell his d/b/a challenge Davenport, Henry (collectively, suit to several and “Ap- Ordinance and provisions. challenges is an raised to pellants”) Code Inserection several in Sandy arising adult Springs bookstore that sells under the' United Ordinance both materials, Constitutions, sexually Georgia explicit including sexual and States includ- City here, ing, devices. After moved for sum- relevant a Fourteenth mary judgment, Appel- issued Due claim.2 district court Amendment Process ("When joined appellant challenge prop- 1. Inserection was in com- an its initial fails to plaint by plaintiffs-appellants erly appeal grounds on 6420 Roswell on of the which Rd., ("Flashers”) Flanigan’s judgment, Inc. and Enter- court he is the district based its prises, Georgia (“Flanigan's”). Al- any challenge Inc. of to have deemed abandoned though Flanigan's judgment Flashers noticed ground, both and and it follows that the Court, appeal provid- affirmed.”). party an to this Accordingly, neither Inserec- is due to briefing own or ed of its that Inser- only original prop- indicated plaintiff that is tion any brought on This is ection claim its behalf. erly before the Court. because, briefing likely as the en banc indi- cates, challenges Appellants brought arising purchases also Inserection and sells 2. event, any failing provisions sexual devices. to tinder various other United whatsoever, briefing corollary provisions provide any Flash- both States Constitution and Georgia As Flanigan’s ap- ers and have abandoned their a result constitution. Co., Sapuppo appellate peal. in Allstate Ins. either their initial Floridian deficiencies ' Sapuppo, 680-81, (11th 2014) briefing, 680-81 Cir. 739 F.3d 739 F.3d Ga., declaratory Sandy Springs, Ordinance 2017-03-06 specifically requested lants (Mar. 21, 2017). City injunctive striking repeal, the Or- Citing and relief down this perma- unconstitutional dinance as and subsequently motion to dismiss filed a nently enjoining its enforcement. Addition- it, attorney, through in its mootness which ally, requested and Davenport Henry both adopt any expressly intent “disavow[ed] against the an award of nominal par- regulation in the future.” The such City.3 on the briefing ties further issue submitted City’s mootness motion was and the judgment on the City The moved 12(c) pleadings argument. with to oral pursuant Rule carried the case The dis Federal of Civil Rules Procedure. briefing After merits had been granted City’s trict court motion and argument before completed, oral was held upholding entered an the Ordinance. order banc On the the en June timely Appellants appeal, filed notice day argues it de- same a move was —in in arguing that the district court erred repre- signed attorney’s “endorse” in A entering judgment City. favor of the argument sentations at oral —the Court, panel briefing after and oral now- passed regarding resolution court argument, found the district Springs, repealed Sandy See Ordinance. committed reversible error and af (June 2017). Ga., Resolution 2017-06-86 Enters., Flanigan’s Inc. of firmed. Ga. resolution, passed In this unani- which also Sandy Springs, 1342, 1344 (1) mously, the the Ordi- City: noted that vacated, 2016), during nance “was never enforced 2017). panel held that it was (2) effect;” years that “disa- holding bound follow Williams IV any to reenact Ordi- vow[ed] [the intent Appellants suggested seek re (3) regulation;” similar nance] (“Therefore, hearing en banc. Id. repeal claimed that the the Ordinance holding unless and our IV until Williams inconsistency City’s “eliminated banc, or by is overruled en [now-repealed] prohibi- Code between the Court, Ap it.... we are bound follow sale, tion on the and the obscene devices court to pellants petition free zoning licensing banc, City’s en ordinances reconsider our decision and we so.”). encourage regulate stores sell them do license which Moreover, City them.” the conceded 2017, 14, majority On March a secondary minimizing its in the interest of in judges active voted this Court service of effects of sexual devices—one sale of granting rehearing in favor en and banc grounds City the two on which had the was, panel opinion accordingly, vacat- effectively defended Ordinance —was 21, after ed. On March 2017—one week zoning by existing licensing served and rehearing granted City Council —the to, regulations. compli- repeal Pursuant unanimously portion voted to and with, appeal. 28(j) its Ordinance at issue this See Rules ance Rule the Federal petition briefing, complaint prayer and R. their banc Inserection’s included a en Fed. 40(a)(2), "such App. Appellants other and further relief as the Court P. all have waived not, just proper.” We need and deems their but Fourteenth Amendment Due Process not, expressly do consider whether this blan- event, given claim. In our ultimate request be ket would sufficient to raise the requires be- resolution of this case dismissal availability damages. Oliver v. of nominal See merits, reaching fore substantive Falla, 1277, 258 1280-82 claims before the Court immaterial. 2001) (discussing for nomi- claims waiver damages). nal

1255 Procedure, of Appellate Addressing advised jurisdiction our in the in- stant day requires Court its resolution the same case us to undertake two passed. inquires. First, it was related must ask we wheth- City’s er repeal portion the relevant

II. Standard Review of the Ordinance has rendered moot Ap- pellants’ for declaratory claims injunc- question We consider the of moot If moot, tive relief. those claims are Springs Sys., ness de novo. Coral St. Inc. must Sunrise, then consider their prayer whether 1320, v. 1328 for nominal sufficient to save 2004). non-justiciable

an otherwise case. We ad- III. Discussion dress each turn. It is “[u]n- well established that Declaratory A. Injunctive Relief Constitution,

der III Article federal above, As gen discussed case actual, courts adjudicate only ongoing erally becomes moot must be dis or controversies.” Cont’l cases Lewis v. missed, if already appeal, even “when Corp., 472, 477, Bank 494 110 U.S. S.Ct. presented longer the issues are no ‘live’ 1249, 1253, (1990). 108 L.Ed.2d 400 At a lack parties legally cognizable inter minimum, requirement “a means 496, est the outcome.” at 89 Id. S.Ct. litigant suffered, must have or be threat voluntary cessation, 1951. The doctrine of with, an injury ened actual traceable however, provides an important exception likely defendant and be redressed Indeed, general to this rule. as the Su 477, judicial favorable decision.” Id. 110 preme long recognized, Court has Moreover, S.Ct. at 1253. con this “actual cessation “voluntary allegedly illegal troversy stages must extant at all be not deprive conduct does the tribunal of review, merely the com time power i.e., to hear and determine plaint is filed.” Arizonans for Official En not make does the case moot.” United glish Arizona, 43, 67, 520 U.S. S.Ct. Co., States v. W. T. Grant 345 U.S. 1055, 1068, (1997) (quot 137 L.Ed.2d 170 894, 897, S.Ct. L.Ed. Newkirk, 395, 401, ing Preiser (1953). exception, Without this the federal 2330, 2334, 45 (1975)). L.Ed.2d 272 compelled courts dismiss a result, As has rou leaving the case while defendant “free to tinely that a moot cautioned case becomes ways.” return to his old Id. “if an event while pending occurs S.Ct. at 897. on appeal that makes it impossible grant ‘any court to effectual relief whatev However, voluntary cessa prevailing er’ to party.” of Scien Church tion exception the mootness doctrine tology States, of Cal. v. United apply “subsequent does not where events L.Ed.2d 313 absolutely allegedly made it clear that the Green, (1992) (quoting Mills v. 159 U.S. wrongful reasonably behavior be could 651, 653, 132, 133, Earth, 16 40 S.Ct. L.Ed. 293 to recur.” of expected Friends (1895)). Thus, (TOC), Inc., a once-justiciable even Inc. v. Laidlaw Envtl. Servs. 167, 693, becomes 189, 708, moot and must be dismissed 120 145 528 U.S. S.Ct. presented longer (2000) “when the are no (quoting issues United L.Ed.2d 610 States Exp. Ass’n, Phosphate parties cogniza ‘live’ or legally lack a v. Concentrated 393 203, 364, 199, 361, ble interest in the outcome.” Powell v. 21 L.Ed.2d 486, 496, (1968)). Thus, intervening 395 U.S. 89 events will S.Ct. 344 McCormack. 1944, 1951, (1969). moot “no 23 L.Ed.2d 491 render a case when have

1256 ‘ challenged apply in laws eases where that chal expectation’ ‘reasonable some repealed there is reason resume the law been unless lenged will after practice Jesus, may Inc. v. be reenacted to believe the law suit Jews is dismissed.” Auth., Hillsborough Cty. suit,” “altogether 162 is Aviation F.3d after dismissal County 1998) (11th (quoting Cir. of Federal every consonant 629 with Angeles Davis, issue”). 440 U.S. of Los Circuit Because address (1979)). 1379, 1383, L.Ed.2d 642 59 S.Ct. which we view volun- with deference. rea determining no such action, The test for tary changes plain- a government ordinarily is exists expectation sonable finding of must disputing tiff mootness and, accordingly, party “stringent” speculation present “[m]ere more than bears generally asserting mootness previous City may its that the return “ persua[ding]’ the court ‘heavy burden City Miami, ways.” 402 F.3d challenged conduct cannot reason that the (“Mere speculation that the re- up again.” to start Laid ably expected be to,its ways is no turn substitute previous law, 120 S.Ct. at 708 528 U.S. inten- secret concrete evidence (alteration original) (quoting Concen tions.”). Phosphate, at 203, trated Indeed; where interven even 364). ing governmental action does rise true is that the bur While legislative repeal wé have the level a full generally mootness falls proving den of challenge government that “a to a held it, asserting party “govern heavily on the unambiguously policy has been termi giv and officials have been entities mental in the absence of- nated will be moot some leeway private more than considerably en that the policy reasonable to believe basis presumption they are parties in the if will be reinstated the suit terminated.” illegal Coral unlikely *to activities.” resume Elections, Supervisor Troiano v. Springs, result, at 1328-29. As F.3d 2004). (11th Cir. In Troi of an repeal ordinance has “once the ano, panel collected cases this Court to be jurisdiction questioned, our caused Supreme from both the Court Elev of present bears burden [the plaintiff] enth Circuit and said: ing challenge evidence affirmative policies When laws government Nat’l longer is no moot.” Co. Advert. challenged, Supreme have been City Miami, 402 F.3d uniformly that Court has held almost 2005). This is because both Court challenged behavior cessation of the repeatedly, Court have Supreme and the has rejected -moots The.Court the suit. repeal challenged that “the indicated in this an assertion of mootness kind of of those events that makes it statute is one challenge only there is a substan- when allegedly wrong absolutely clear that offending policy tial likelihood that the. reasonably ful ... could be behavior terminat- will reinstated suit Harrell expected to v. The Fla. recur.” ed. Bar, 1265-66 608 F.3d (cita- original) (emphasis Id. at 1283-84 2010) (alteration original) (quoting Coral to multiple Supreme Court cases Springs, tions n.9); 371 F.3d at see also omitted). in this inquiry mootness Springs, key 1329, 1330, 1331 Coral analysis is whether evidence therefore n.9 (citing “numerous occasions” where expectation that us to a leads reasonable repeal has held that the City the course reenact will challenged legislation a reverse mooted case and of view, allegedly portion its the Code noting that our under which “the offensive grant dis- voluntary should this its motion to of cessation doctrine does Springs, miss. at 1331 there See Coral is reasonable expectation that the (“Whether government entity the of a will will repeal law lead reenact the chal- legislation. lenged is finding challenge that to the law the significantly depends moot most wheth- applying Before to the this law instant sufficiently er court is convinced that facts, we find instructive discuss some repealed brought not be back.” will law precedent additional that informs our anal added)). (emphasis ysis, focusing particularly our cases in timing which the of legislative repeal From both the cases discussed begin opinion, issue. We with an Nation above and detail those described more Advertising City al of Co. v. Fort below, Lauder we can discern the appropriate dale, 1991), 934 F.2d 283 we analysis, including three broad factors in possible think is tension with the land guidance which courts look for should scape we describe. In that an outdoor conducting of inquiry. that See Nat’l Ass’n advertising company challenged City Pharmacy Regents of Bds. Bd. of sign ordinance, of Fort Lauderdale’s Sys. Ga., alleg of Univ. ing a of series constitutional deficiencies. 2011) J., (Tjoflat, suggesting ,the at 284. Six company Id. weeks after citing these three factors and broad cases filed, suit, the city sign amended code derived). First, from they which we and; day, the next moved dismiss the ask change in result- whether the conduct moot. case as Id 284-85. district ed substantial deliberation is or. as court dismissed claims moot but merely manipulate juris- attempt our reversed, panel pri of this Court based diction. Id. we will the tim- Thus examine marily Supreme on the Court’s-decision in ing procedures of repeal, used City Mesquite Castle, of v. Aladdin’s Inc. enacting it, any explanations indepen- 283, 102 (citing Id. at 285-86 S.Ct. dent of this litigation may have mo- which (1982)). doing, 71 L.Ed.2d 152 so Second, tivated it. ask whether panel on the relied Court’s government’s to terminate the decision there no certainty observation “was challenged “unambiguous.” conduct was City Mesquite of would reen requires Id. This us to consider whether allegedly provision act the unconstitutional alleg- the actions have been taken to jurisdiction.” it defeats federal Id. at 286 edly rejection moot the case reflect a City Mesquite, (citing challenged perma- conduct that both (“There certainty is no Third, nent complete. we ask whether that a similar [of course reenactment] government consistently has main- pursued not be if its most recent policy tained its commitment to new amendment were defeat feder effective legislative considering scheme. Id. When jurisdiction.”)). al legislative full repeal challenged law— portions an amendment remove particu Considered isolation — factors thereof —these should not given its lack larly apparent any single viewed nor as harboring exclusive should expecta reason a reasonable Rather, dispositive. factor be viewed tion that the city sign would reenact City entirety the relevant circumstances Fort Lauderdale could be code— should be and a find- to imply timing- considered mootness construed ing totality city’s dispositive should repeal follow when those whether we reject think persuades the court it will reenact.4 We that read- circumstances 4. The remains whether “[i]t Fort Lauderdale Court held uncertain itself, legislation, by men- is sufficient Indeed, panel repealing the not even ing. did in its of timing support expecta- amendment to tion the the evidence reasonable rationale; gap between governmental entity the six-week sparse tion that the will re- amendatory filing of suit and the Certainly, the the repealed it legislation. enact solely in reci- mentioned legislation was its that such suggest not be should read facts. tation of the timing dispositive. should be deemed City Rather, ra of Fort Lauderdale the posture, In Nation a case with similar City of Mes entirely based tionale is Advertising City Miami, of Co. v. al quite. misplaced. That reliance While was 2005), plaintiff— the say did that the Court Supreme it is true apparently Advertising the National same City is the certainty” that “[t]here City Company plaintiff that was the chal the Mesquite would not reenact brought Fort a constitutional Lauderdale — Mesquite, City lenged provision, sign City challenge provisions the the the Court’s S.Ct. at zoning at 1330- of Miami’s Id. ordinance. upon certainty expressly lack of was based suit, plaintiff after filed the 31. Sometime apparent crucial facts that are two began process amending the its city Lauderdale, City pres are not of Fort and and, signs zoning regulations pertaining to argu oral the instant ent in case. First —at litigation began, adopted months after ten City before the ment Court —the addressing “all amendments com inten its Mesquite expressly conceded by plaintiff. raised Id. at plaints” precisely provi the same tion reenact Although it confronted the squarely 1335. were judgment if the district sion court’s timing, inference of question n.11, at 289 at 1075 vacated. Id. therefrom, be drawn motivation could Second, city rein previously n.11. had inqui key panel focused instead “obvious” a related restriction in an stated guiding these determinations: ry of an earliér attempt to avoid effects dispute There is some as when the ruling. state court Id. at City’s of amending zoning process words, city only other had However, began. since' we ordinance then propensity repeal revealed has no intention City conclude that the allegedly legislation reenact offensive re-enacting allegedly Of unconstitu- policy litigation with its when interfered code, segments zoning tional it had also stated objectives, expressly initially not decide motivated need what Neither doing so in that case. intention City’s comprehensive overhaul itsof City of Fort apparent of these factors zoning entire ordinance. and, panel’s accordingly, Lauderdale went on to hold Id. at 1331 n.3. of cer reliance on the well-founded lack city’s “purpose amending, City Mesquite misplaced. tainty in of our statute is central focus Nor, issue, on the given its lack analysis nor is it of our deci- City inquiry dispositive Lauder conclude that of Fort can we Thus, at 1334. of Miami Id. precedent, sion.” provides us with much dale timing of in our any, proposition suggests correctly view—that for the — possess expectation city so. Given “presently that the would do would” because reenact sign power authority justification es the for such amend Laud Nat'l of Fort code.” Advert. Co. v. opinion apparent from the face of the belief erdale, 1991). suggested timing repeal, it could law, power our case the mere Under timing dispositive role in played a that this authority plainly an insufficient to reenact is the Court’s decision. reason, alone, standing raise reasonable not, timing legislative City Miami, of a repeal will tion.” Nat’l Adver. Co. v. alone, (11th standing create a expec- 2005), reasonable F.3d Cir. denied, cert. government tation that the entity will re- (2006). 164 L.Ed. 2d challenged legislation. enact As A that Court “su noted, “[r]ather, perseding statute or regulation important the most moots a inqui- ... case to the extent that it ry removes City is whether we the believe would re- challenged prior features of the prior enact law.” the ordinance.” Id. Marijuana Coal. for the Abolition of Pro Lastly, our banc en Tanner Ad City Atlanta, hibition v. vertising Group, Fayette County, L.L.C. v. 1301, 1310 (11th 2000). Cir. If the repeal Georgia, 2006) (en 451 F.3d 777 is allegedly “the unconstitu .such banc), persuades timing further us that the portions tional of the [challenged] ordi of repealing legislation should not be dis- exist,” nance longer no appeal the positive inquiry of our into whether there rendered moot “any because decision we is a expectation reasonable of reenactment. would render clearly constitute an Tanner, plaintiff, There challenged the impermissible advisory opinion.” Nat’l ordinance, county sign alleging several Co., Adver. F.3d 1335. constitutional infirmities. Id. at After (alterations Id. at 789-90 in original). The the district court panel denied relief and a timing of legislative repeal the in Tan- reversed, granted this Court peti we very ner —which is similar to that of the rehearing tion for en banc. Id. at 783-84. instant case—not did drive the day agreed after we to take the case inquiry in that it did even war- en nearly years three into litiga banc— mentioning rant in the rationale county repealed tion—the sign ordi Moreover, holding. mootness Tanner’s nance plan substantially and enacted new City Miami, heavy reliance cor- changing, exception, with all of the responding lack of reliance of Fort provisions challenged original in Tanner’s Lauderdale, our bolsters conclusion that complaint. Id. at 784. timing of repealing legislation should Regarding challenged provi those not control inquiry. the mootness Accord- ordinance, sions addressed the new our ingly, in context of repeal a full en banc unanimously Court allegedly legislation, held that “the unconstitutional repeal [previous] Sign timing repealing legis- Ordinance hold dispositive lation is Sign and the the court con- enactment Ordi [new] cludes from other nance evidence there is no challenges rendered moot expectation reasonable brought govern- by Tanner.” Id at 785. The Court mental actor challenged will reenact reasoned: provisions.5 To the extent that of Fort “This Court and otherwise, suggests Lauderdale repeatedly repeal held that the longer precedential. an allegedly amendment of unconstitu- tional moots legal challenges statute forego We turn apply npw legitimacy repealed legisla- ing principles facts, of law to the instant course, City Miami, timing repealing legis- only, along 5. Of with Tanner lation is one of the relevant factors to be persuaded when other evidence has considered as a court embarks on the moot- expectation court that there is no reasonable Bar, inquiry. ness See Harrell v. The Fla. government repealed that a actor will reenact 2010) ("timing 1265-68 legislation, timing repealing legislation, voluntary and content” of a decision to cease alone, will not avoid mootness. relevant). challenged activity We hold factors, repeal on both the Ordinance’s using the broad detailed above voted regarding repeal into the resolution inquiry inform our ultimate whether open during regularly session scheduled totality of the circumstances indicates meetings. placed Both were measures expectation that there is a reasonable published agenda and the Council’s are repealed the City here reenact the will meeting in their minutes. The reflected is no there sub- legislation. We conclude unanimously repeal passed itself was with indicating a reasonable evidence stantial and, present although single all members reenact the City the will likelihood vote, missing was for the member second provision it has now re- challenged which regarding the was repeal the resolution very To there is sub- pealed. contrary, the short, passed objection. without likewise to believe that leading evidence us stantial City repeal to procedures the by the used that the expectation there is reasonable Ordinance reflect the same level the provision or a reen- similar will be same any for expect other deliberation would acted. change policy. in factor, Ap- Considering the broad first Additionally,, City offered per- the has pellants timing of argued have the explanations, dependent upon suasive repeal years litigation into and this the — litigation, course con- explain this its agreed to case en after we rehear the Compare repealing in duct the Ordinance. banc—is not the result of delib- substantial Troiano, (“[Defendant’s] but, rather, attempt plain eration reflects in implement changes the decision the manipulate jurisdiction. the Court’s We ”), voting machines reasoned.... was well argument. unsympathetic are not this Harrell, (“[T]he at 1267 with F.3d However, analysis required under the full ... basis for fail[ed] Board to disclose factor the by this we And it instructive that decision.”). Here, provided City has engaged has in City substantial delibera- compelling it explanations. First, has two having twice on the voted relevant tion— pointed repeal out that the Ordinance’s per- forth put remedial measures —and has removing had the effect an inconsisten- explanations depen- suasive that are cy repealed provision between and oth- upon litigation. dent Indeed, regulations. applicable er while the matter, As the facts here are an initial issue here banned sale Ordinance far from in removed those which the cases City, throughout sexual devices entire- procedures change used effect a have ly separate provisions of contem- the Code given pause about the level of us. delibera- regulate plate such sales and same - attending policy. tion Har- change in Cf. through zoning license requirements rell, (“[T]he Board acted devices.6 for stores sell such As '(cid:127) secrecy closed [and] behind me[t]. City argu- oral counsel observed (“[I]n doors...,”); so, ment, doing it acknowledged as the id. in its City these departed procedures.”). regarding repeal, its own resolution two City contrary, provisions plainly are On the here the inconsistent.7 Council simulate, emulate, represent City’s 26-22 of the defines an 6. Section Code otherwise ” ‘specified as "a establish- anatomical areas.’ book- adult bookstore commercial Such subject zoning stores are a series of facility city in the ment that maintains licensing pro- other restrictions established percent or more of its area for the dis- floor sale, [i]nstruments, visions Code. play, of ... rental and/or devices, novelties, toys paraphernalia or other designed provisions in connection with While the two that are use sets incon- other, they specified flatly herein or with each are not sexual activities as defined sistent . Secondly, shops” through even the Ordinance were “sex and zoning licensure provisions requirements. Nonetheless, with inconsistent Coun- Code, gathered has- that it cil has open conceded now twice session unnecessary accomplish key unanimously passed reject- measures goals passing challenged it: ing elimination Ordinance. With the first, secondary shops harmful effects of it repealed the challenged section of Indeed, second, sell the banned City’s devices. With the Code. identi- it City argued Ordinance inconsistency itself it fied an internal warranting the. being City’s change enacted to and conceded one of the two achieve government pre- grounds “substantial interest justified, which had originally venting negative secondary the effects of might the Ordinance. While in we establishments which in skeptical trade indécent and circumstances have been of the It argu- obscene materials.” late they engaged raised hour at which in have court, (“[T]he measures, ment before both district the these such not timing disposi- is City’s Ordinance the persuasive identifies interest in tive in this case is and there preventing negative secondary the effects for legitimate explanations evidence of the supra City repeal. with establishments associated trade See discussion .’(cid:127)’), in materials... the obscene and initial Miami and Tanner. We are con- ultimately (“The City’s panel, purpose enacting in City the the vinced that has undertaken the protect to and required Ordinance was order moral- “substantial to deliberation” as- there, ity prevent negative secondary the and sure this Court that nois reasonable effects expectation associated with it the alleged- establishments that will reenact materials.”). However, Thus, ly trade obscene provision offensive its Code. the regarding repeal, its supports resolution the first of our prong inquiry the the City rejected justification has now conclusion that this case moot. and is conceded, regard to with the feared sec- inquiry, prong On the second of our ondary effects, that the Ordinance re- Appellants fare no City’s repeal better: the zoning dundant “[t]h[e] because and licens- plainly unambiguous termination ing regulations City’s secondary serve the the challenged As an initial mat conduct. effects interests relative to the sale [sex- ter, City merely the has not declined has, Thus City apparent- the ual] devices.” against these Appel enforce the Ordinance ly, recognized that it no for has need lants; challenged por it has removed the of the two reasons it as justifying offered Harrell, entirety. tion in its Cf. F.3d at the now-repealed Ordinance. merely (“Perhaps the ... has Board against

It strengthened decided ‘not enforce certainly [to] Rule] would have [the (final ”) City’s expedient case if it been in this case.’ three altera [Harrell] had more recognition contradictory original) (quoting its of the tions in But nature Graham terworth, 1993)). of its provisions ability code 5 F.3d Moreover, secondary City beyond control gone has deleterious effects regulation § pro- under 26-22 contradictory. repealed subject The Ordinance would Ordinance, running against Con- vided defense without an affirmative un- afoul versely, Davenport lawful maintain sale of sexual devices when "done for a did —who educational, medical, scientific, leg- bona fide location but still wished to brick-and-mortar islative, subject judicial, pur- sell have been law enforcement these devices— is, course, pose.” § possible although repealed 26-22. It Ordinance but — Nonetheless, likely two are in suffi- probably provisions a store could main- —that City’s prof- tain we inventory a sufficient of sexual devices cient tension that consider persuasive. exclusively explanation repeal these fide” sales that it fered for the "bona City will expectation that has this Court— reasonable repeal and assured mere Wheth- legislation. it separate challenged reenact occasions—that now three City the Ordi- defended the Ordinance reenacting er the and/or has intention constitutional8 believe it First, in its motion to dismiss continues was nance. evidence, any, mootness, expressly provides weak City’s attorney and, therefore, repeal ambiguous intent to its was “disavows warranted legislation. City will regulation in the We that the reenact future.” adopt such a full City unanimously has enacted representa- previously relied such provi- challenged very public in the filings this Court tions with repeal sion; separate its counsel oc- here. Coral two we consider See has—on circumstance (“[T]he Springs, City’s its commitment at 1333 casions—warranted unanimously public- it has represented repeal; there repeatedly brief affirming City ly adopted resolution those ‘no whatsoever that indication suggest representations. These actions [offending provi- code reenact ”). n Likewise, type unambiguous termi- precisely future.’ at oral in the sions] from which are unable draw a that “when nation counsel reiterated argument, n reasonable expectation that will to file authorized the motion [him] challenged legislation. on the Accord- appeal to this moot based dismiss as reenact analysis Ordinance, second of our repeal ingly, prong the legislative [it] of this the dismissing in this case to counsels favor as say City the authorized disavows [him] (relying moot. to id. any intent reenactment.” Cf. argument at oral representations on made factor we Finally, under the third challenged a conclusion that the justify

to City normally consider whether the has reenacted). not Final- provisions would leg- to the new maintained its commitment any counsel’s ly there be doubt about —lest Here, although are un- scheme. we islative City representa- the to the ability to bind adequately its commitment judge able to argu- oral in the and tions made motion stage given scheme the late to the new City passed Council itself a res- ment —the are comfort- adopted, which it has been we “disavowing] any intent expressly olution public by City’s the persuasive ed similar any to reenact [the Ordinance] repealed commitment not to reenact the regulation.” lack provision, as well as its demonstrated enforcing the cognizant of commitment to old are.We fact Indeed, nearly although Appellants a note City its for scheme. defended Ordinance similarly and, argu- they inclined banc oral and others even at en decade ment, complied now-repealed it Ordi- un- have with the declined was concede , nance, However, they suggested that our jurisdiction constitutional. not controversy City sanc- presence attempted on the of a live ever enforce turns this, and, Thus, attending litigation tions Ordinance.9 throughout the con- City is a no inclination text, there where the has shown turns whether jurisdiction party’s turn concrete context conducive Our does not factual beliefs; fed hold otherwise would appreciation consequences turn realistic glorified debating action.”). into eral courts societies. judicial Forge Valley Unit Christian Coll. v. Ams. See Separation State, Inc., & ed for of Church Ordinance were 9. Those violation $1,000.00, exceeding subject fíne to "a (1982) ("[Article standing] III L.Ed.2d 700 exceeding imprisonment for six terma legal pre questions to assure that the tends months, period for a confinement at labor resolved, not in the to the court will be sented days, any exceed combina- time not to debating atmosphere society, but of a ratified scheme, short, enforcing City the old we are repealed towards has its Ordi- repeal inclined believe that an It so unambiguously nance. did and unan- provision imously, open session, otherwise unenforced code during public embrace suffi- regularly decision meeting scheduled of its ciently City’s serves to underscore Council. It has persuasive offered reasons legislative commitment new doing for it so. And has expressly, re- scheme.10 peatedly, publicly in- disavowed provision tent to reenact a that it never

Beyond normally factors we would in the place. Against enforced first those when evaluating question consider facts, is no expectation there reasonable mootness, history our in a simi- with cases will return previous to its posture lar clearly suggests that dismissal Accordingly, Ordinance. we are un- simply above, proper is the course. As our noted able conclude that claims de- late-stage Tanner involved a similar injunctive claratory and proper- relief are governmental body repeal arid we ly before us. the com- nonetheless dismissed the bulk of Moreover, plaint moot. 451 F.3d at 789. Damages B. Nominal late-stage repeal even was not men- Having determined that in the Tanner opinion’s tioned discussion injunctive claims for declaratory and relief holding. the rationale its mootness moot, must And, pray decide whether in stark contrast to instant er for damages Appellants’ nominal apparent lone government that the — remaining claim11—is actor in Tanner sufficient to save had intent “disavowed” ordinance, moot challenged to reenact the that it otherwise constitutional chal sure, lenge. To there had offered for the re- be are cases in alternative reasons which history judgment that of a in favor of peal, any plaintiff or there non- a request ing only in damages enforcement. mootness nominal a We believe that would have strong support practical the instant case in on parties’ finds effect rights Likewise, obligations.12 Tanner. there situations Ga., Sandy Springs, Although thereof." Code proceed”). Appellants tion of not re did 1-10(c). 1988, quest attorney's § § Ordinances fees under 42 U.S.C. course, is, attorney’s an fees "interest of not, course, suggest 10. We do of to mean that insufficient to create an Article III case if were to the Ordinance a reenact controversy where none exists on the merits potential plaintiff required would to wait be underlying of the claim.” Lewis v. Cont'l filing levy to for the Corp., sanctions before suit. 472, 480, Bank 494 S.Ct. U.S. 110 question day. is a That different for a different 1249, 1255, (1990). 108 400 L.Ed.2d Accord merely long suggesting We are histo- only ingly, Appellants' remaining is for claim non-enforcement, ry coupled of with the re- damages. nominal repeal, cent indicates the commitment ato opinion greater 12.In we an discuss in detail legislative new tradition- scheme that we have below, (now-Professor) then-Judge McConnell required ally in these situations. suggests of Circuit the Tenth that "[w]hen neighboring Appellants request 11. did or com- a le not actual landowners wish to obtain Memphis Light, pensatory damages. gal disputed boundary, of See Gas determination a for Craft, 1, 8-9, might example, Div. & Water 436 98 sue the other for nominal 1554, Rights 1559-60, (1978) damages trespass.” S.Ct. 56 L.Ed.2d for Utah Animal City Corp., (finding punitive that a Lake "claim for Coal. v. Salt actual 2004) (McConnell, damages” J., arising challenged from the con- concur Likewise, “plaintiffs will ring). save a seek case from mootness where sometimes duct damages claim is not or so in libel “that so insubstantial clear- suits in order to nominal ly by prior reputations by proving foreclosed [it] decisions that vindicate their discussed, only- As have Article damages nominal will be the . we in which grants power III courts federal remedy appropriate be awarded actual, “adjudicate ongoing cases or only case or contro- plaintiff a live victorious controversies,” Lewis, 494 U.S. circumstances, In the exer- versy.13 such at, requirement S.Ct. This “subsists proper. plainly is But jurisdiction cise through stages judicial pro all federal in which the same there are also situátions minimum, and, ceedings” requires at a purpose no than serve would award , suffered, or litigant must have be “a judicial approval to' an to affix a seal with, injury threatened traceable actual already that has been realized. outcome likely the, redressed defendant and variéty. of that squarely is last This case judicial decision.” Id. at favorable already Appellants won. Their victo- have added). (emphasis As at 1253 expedient, compre- ry, perhaps not while result, repeated “it has frequently [been] They relief have received all the hensive. power courts are federal without any nothing they requested there questions decide affect cannot grant them. effect practical left us rights litigants tlie case before them.” availability practical Because such Rice, North Carolina III of Article remedy prerequisite is a (1971) L.Ed.2d S.Ct., curiam). Therefore, jurisdiction, justi- (per, we must conclude that a previously requested sus- ciable moot damages not case is when prayer for nominal will relief, granted, longer have that in Accordingly, case. hold tain this practical or obli rights effect14 case, involving a constitutional chal- gations litigants.15 moot, legislation lenge to is otherwise save injury will prayer only for nominal instant complained, which and thus the Appellants the case dismissal.. Id, when, cognizable] legally supposed [a need exam iibel falsehood.” We interest was a but, rather, merely ple, possi examples to those our resolution an issue could not add holding acknowledge bly any practical here that our effect the outcome does jurisdiction all (citing foreclose exercise matter.” Ass'n Rehab. Fla. Facilities, Dep't plaintiff claims nominal cases where & Fla. Re Inc. v. of Health Servs., damages, 1208, (11th hab. F.3d 225 1217 Cir. Rights, 2000))); Animal at F.3d 1265 Utah 371 infra note 13. 23. See (McConnell, J., (“The concurring) award 'of practical damages nominal no would serve Bowen, 927, See Connell F.2d v. 797 929 14. legal purpose, have would no effect on 1986) (Clark, J., ("Gen (11th dissenting) Cir. rights parties, and no of the have effect erally, is it an action considered moot when, future,”). on the justiciable longer controversy presents no of will any because determination the matter Ashmus, 740, v. U.S. 15.See Calderon 523 practical parties, no on the have effect 1694, 749, 1699-1700, 140 118 L.Ed.2d S.Ct. have re when the issues in the case been (1998) (finding non-justiciable 970 a case or have for some become aca reason solved “have within III when would Article it point plain of from of demic view impact legal rights on the McCormack, coercive obli tiff.”); also see v. 395 Powell Lewis, gations party”); 1944, of either also 486, 564, 1986, see 494 89 23 U.S. S.Ct. 478, ("The parties 110 (Stewart, J., S.Ct. 1254 (1969) dissenting) 491 L.Ed.2d have 'personal to stake in the must continue (arguing where that a case moot it could City (quoting outcome' of of Los “any lawsuit.” practical impact”); not have conceivable Angeles v. Lyons, 101, W., 95, 103 461 U.S. S.Ct. LP Am. Ctr. v. Home Ins. Modern (1983))); 912, ("This 1660, 1665, Co., (10th 2014) 675 913 75 Aetna 749 F.3d Cir. L.Ed.2d Haworth, 227, Life any impor Ins. 300 U.S. appeal practical to ceased have Co. 240- 41, tance, moot.”); (1937) 81 L.Ed. 617 and 57 S.Ct. became therefore Ry. City Alexandria, ("The controversy 608 must con Norfolk S. Co. v. of be definite and 150, 2010) crete, ("[Pjarties touching legal parties of 161 lack relations

1265 to The power remedy, we have the Court has never held constitutionally im- the existence was damages nominal alone can save a case prohibition ability on their to permissible and, from mootness although are aware (and use) buy or sell therefore to that a our majority of sister to circuits That sexual devices.16 their com- banned question reach this have resolved it differ- plaints pray predominantly and, Inser- — ently today,17 than we do we are not con- case, exclusively declaratory ection’s —for vinced that the they cases which have injunctive relief makes that their and clear suggest they relied the result have only goal challenged was removal Indeed, in neither of reached. the Supreme portion Appellants the Ordinance. have Court’s leading damage cases awards suggested they never entitled violations, for constitutional issue damages resulting opera- actual of mootness presented Court. they tion the Ordinance. have Nor made showing likely that the Ordinance is Carey Piphus, cases, The first these supra be reenacted. See Section IlLA. A 1042, L.Ed.2d reading complaints fair of their reveals (1978), students, in involved two separate injuries alleged all their would be circumstances, suspended were each who by, possi- all of remedied and therefore receiving from school without adequate by, relief ble removal exhausted procedural district process. The due court challenged Having provision. Ordinance al- that the had been deprived found students that, ready simply noth- achieved there procedural process rights their due but ing being left us do. Far from “like- damages and did did award not deter- ly” favorable decision this Court mine whether the students would any practical would have effect on their suspended those-rights been Lewis, had rights or obligations, 494 U.S. at S.Ct; 251-52, Id. at been violated. these S.Ct. at circum- reversed, it is 1046. plainly stances Circuit hold- possible. Seventh interests.”); having collecting legal adverse nal id. at avoids damages mootness” Advantage Media, cases); (requiring L.L.C. v. “concrete case Prairie, admitting Eden of an de immediate definitive 2006) legal rights parties (suggesting termination claim was not moot that a adversary proceeding” proceed “might plaintiff án under because the entitled Act). Judgment Declaratory damages if it nominal could show that was subjected procedures”); to unconstitutional Rights, complaint, Davenport Henry (major their Utah Animal 371 F.3d at ("It they currently suffering ity opinion) claimed that "are seem odd a com harm, injury, plaint satisfy will continue to suffer an for nominal Arti could being purchase controversy requirements, unable sell sexual cle Ill’s case or and/or. Springs in Sandy or to use them for functionally devices when a identical for declar claim activity, Henry’s sexual in atory intimate and relief But will not. this Court has alleged (footnote omitted)); for his art.” that the squarely Inserection Ordi- so held.” Bern County Angeles, 862, process nance "violates the due substantive hardt v. of Los 279 F.3d Georgia ("A 2002) clause and Federal Constitu- 872 Cir. live claim for nominal infringes unjustifiably damages tions because it on a prevent will dismissal for moot Pataki, deeply-rooted privacy ness."); 109, in ability interest one's Van Wie 267 F.3d 115 that, acquire (2d 2001) (stating and self-use a sexual device.” n.4 “plain in dicta potential tiffs in could election cases avoid See, e.g., Morgan Indep. simply by expressly pleading Plano for 17. Sch. mootness Dist., 740, pass & n.32 that should the election before 748 the issu 2009) relief, "[tjhis (noting injunctive money that ance of dam court others nominal ages consistently requested”). a are have that claim for nomi- held 1266 in live case which a court Court considered part in the district

ing relevant at all suspen- damages for actual existed claim have determined whether should litigation. Accordingly, it did if due of the imposed even levels been sions would nothing that suspen- mootness and If the not address had been afforded. process held, said, mootness im- even controls the otherwise would have been sions before us. be entitled issue the students would posed, pecu- damages in actual the amount Community Memphis Likewise, day they while niary value each missed Stachura, 299, District v. 477 School 1046, at at Id. suspended. (1986), 91 106 L.Ed.2d S.Ct. 249 holding. agreed Supreme Court with damages noted that are Court nominal 254-55, Howev- at 98 S.Ct. at 1047-48. Id. remedy vi appropriate for a constitutional er, also Circuit held the Seventh had “actual, provable olation that caused no damages prove if students failed to never injury” but confronted mootness time, the value school on of missed based n.ll, at 2543 inquiry. at S.Ct. Id. be for eligible still substantial they would jury In that case returned sub n.ll. solely on “nonpunitive” damages based damages for constitutional award stantial procedural process. due Id deprivation violations, arguably on instructions based Supreme at 1046. The S.Ct. deter permitted such award to be disagreed conclusion with this latter Court by reference to the “value” mined suspensions that if held the students’ right that was violated addition procedur- imposed have been even Id. by plaintiff. actual harm sustained and, process al due had been afforded — 302-03, The Court 106 S.Ct. at 2540-41. thus, based on damages that actual damages on the “abstract held based ” unavail- of missed school time were value ‘importance’ of a constitutional value’ only nominal they could recover able— simply in a case right were not recoverable pro- damages deprivation for the due § brought under 1983 because U.S.C. Id. at at 1053-54. S.Ct. cess. damages § limited to those de result, compensate injuries caused signed Court remand- Supreme As a 309- deprivation. to the court to deter- the constitutional Id. at the case district ed mine, instance, Accordingly, the 106 S.Ct. at 2544-45. the first whether and, thus, remanded for a new trial suspensions were justified was therefore, was, damages damages compensatory award of whether an actual True appropriate. clearly school time “alive” when the missed nominal if the The Court’s enough, district court ruled. comment determined value damages damages some abstract remand actual were —and available, remedy right appropriate “nevertheless students —are nominal violation with no to recover attendant entitled constitutional [would] S.Ct, n.ll, damages, id. damages not Id. actual at 308 exceed dollar.” n.ll, 266-67, says nothing at all about point But at no at 2543 damages nominal nominal can damages award whether save was that Rather, the mootness a case is otherwise moot.18 remedy which available to them. Community District, Carey text, Appellants School ask in the both 18. As noted Memphis Community District, litigate court and decide this en banc School compensatory issue the case has become issue was alive constitutional after contrast, moot, notwithstanding even throughout litigation. By fact that entire appel- Appellants in further liti- case are successful the instant now before moot damages— gation, remedy their has constitutional issue. late court decided the —nominal Memphis Carey victory. psychic would be Unlike the situation in

1267 English any for Ari- guidance In Arizonans Official v. the absence of from the zona, 43, 1055, Supreme despite Court—and the positions 520 117 S.Ct. 137 adopted in (1997), other circuits19—we in are 170 the Court did L.Ed.2d mention agreement substantial with the ex- views the Ninth Circuit’s conclusion that nominal pressed by Judge in McConnell con- his damages are an sufficient save other- Rights curring opinion in Utah Animal claim, but it wise moot decided City Corp., Coalition Lake v. Salt 371 reaching without the issue relevant here. 1248, 2004) F.3d 1262-71 There, the Ninth had Circuit determined (McConnell, J., concurring), that a prayer that the claim at was not issue moot on for damages nominal cannot save an oth- prayer damages account of a for nominal For erwise moot case. the reasons that § against under 1983 the State Arizona. follow, confident position we are that our 61-62, at Id. at 117 S.Ct. 1065-66. The support existing finds in the jurispru- § Supreme Court reversed because 1983 dence. and, against actions will not lie a state matter, As an initial our event, analy- mootness party Arizona was not to the here is supported analogy sis to two 69-70, litigation. at 1069- Id. 117 S.Ct. at doctrines, related both of which the Therefore, Su- 70. the claim nominal dam- preme has explored Court in more detail Thus, simply ages unavailable. al- present question: than the standing and though it in a noted footnote that what it declaratory judgments. damages the “nominal termed solution to apply mootness” did id. In the of standing context doctrine —a n.24, n.24, 69 1070 the Court closely connected to of mootness20— did address decide issue the Supreme has Court observed that assuming every it is available—a claim “[b]y bringing suit, mere his whether — preserve plaintiff for nominal could his demonstrates belief that a fa- judgment otherwise moot claim. vorable him happier.” will make that, ensure, "[sjtanding We find it worthwhile note while functions doctrine 19. among things, the circuit courts that have reached this issue other scarce resources ours, position contrary of the have taken our federal devoted to courts those holding parties support among disputes is not in which have a concrete without stake,” judiciary. See members Religion Freedom from while mootness doctrine involves Kensington brought litigated, Inc. New "case [that] Found. v. Ar has been Dist., 469, 190-91, (3d years.” nold 482-92 often ... for Id. at 120 Sch. S.Ct. 2016) (Smith, J., dubitante); concurring parties Utah fact at 709-10. While Rights, (McCon Animal 371 1262-71 sometimes substantial resources into invested nell, J., concurring). litigation license courts to retain "does jurisdiction over one or both cases which had, parties continuing plainly lack inter point, de est,” "surely important ... an "standing differ scribed doctrine of mootness as 192, ence requisite personal between the two doctrines.” Id. at set a time frame: The 710; 120 also S.Ct. at see U.S. Parole Comm'n interest that must exist at commencement Geraghty, 388, 400, (standing) litigation must 100 continue 445 U.S. S.Ct. (mootness).” (1980) throughout (noting its existence Friends L.Ed.2d Earth, "the III Inc. v. Laidlaw Envtl. Servs. flexible character the Article] (TOC),Inc., 189, doctrine”). Accordingly, 528 U.S. mootness S.Ct. while cases (2000) considering standing (quoting in L.Ed.2d 610 Arizo doctrine English Arizona, structive, only by analogy rely nans Official them n.22, n.22, importing avoid are cautious to the more (1997)). stringent analysis standing L.Ed.2d 170 It has since called that into our mootness description comprehensive” holdings. given "not 126 8 observed, Env’t, Declaratory Judg routinely for Better Citizens Co. v.

Steel range of remedies 1003, 1019, “enlarged the 107, 140 83, ment Act 118 S.Ct. 523 U.S. (1998). However, did the Court federal courts but 210 available L.Ed.2d Skelly Oil Co. litigants, jurisdiction.” find- v. standing such has denied extend their Phillips Co., 667, 671, is not an 339 U.S. ing “psychic satisfaction that this Petroleum (1950); remedy 876, III because 1194 see acceptable 879, Article 94 L.Ed. 70 S.Ct. Rogers, 666, 677, III cognizable Schilling Article redress 363 U.S. does also not. 107, at 1019. The (1960) 118 at S.Ct. injury.” Id. L.Ed.2d 1478 80 S.Ct. point At here. (“[T]he is true this is not Declaratory Judgments same Act can offer only redress we litigation, jurisdic of federal independent source an validation, through judicial Appellants tion; presup of such relief availability that has damages, of an outcome nominal judicially remedia the existence poses Perhaps more determined. omitted)). been (citation Accordingly, already right.” ble most, that these than we have doubt juris have no courts the federal because waged a Appellants having particular not involve an over a does diction case — against the years-long battle controversy,' prayer III —would Article this their seeing Court vindicate enjoy to save declaratory is insufficient for relief truly worthy They may one.21 cause as Preiser, 422 moot case. See an otherwise purely psychic satisfaction believe 2334-35; 401-04, at see 95 S.Ct. at remedy an for effective would serve as Lewis, 479, 110 S.Ct. 494 U.S. at also However, complained-of injuries. as their (“Even pursue the 1254-55 order context, an accom- standing absent in the claims, ... declaratory injunctive legal rights effect on the panying practical ‘spe that it has a [plaintiff] must establish us, parties before responsibilities grievance’ against application cific live jurisdiction give them we are without (quoting Golden the statutes....” that satisfaction. Zwickler, (1969))). Given the L.Ed.2d Likewise, nom granting remedies, we the two similarities between for damages inal trivial sum awarded —a prayer is true of a that the same believe compensatory, pur than symbolic, rather damages, damages. Nominal closely analogized be poses may nominal. — ¡a relief, remedy that declaratory As like declaratory judgments.22 has been damages] was to purpose nominal- suggest [of sim- obvious Appellants amici also 21. legal declaratory relief in a in localities with ilarly individuals obtain a form situated benefit judgment to the system general declaratory laws similar Ordinance with no imprimatur of a favorable judicial Dobbs, act.”); Dobbs Law of Reme- 1 Dan B. so, but Article "That well 1993) decision. 3,3(2), (2d (“Lawyers § ed. dies requested re- whether the question III is not dam- might asserted a claim nominal nugatory the world at as to lief would be ages get the court in the the issue before [plaintiff] has stake in large, but whether declaratory judgments were rec- days before Lewis, 494 U.S. at that relief.” Wright, Cooper, ognized.”); Miller & 13A at 1254. 3533.3, § and Procedure Federal Practice 1984) (“The (2d very ed. determination Indeed, Judge McConnell observed that damages appropriate are an that nominal originally sought were “nominal wrong particular implies a rul- remedy for a declaratory obtaining relief before a means worthy ing wrong vindication declaratory judgment statutes.” passage of declaratory judgment.”)). essentially For Rights, Utah Animal we, Judge justiciability purposes, like McCon- J., Douglas concurring) (citing (McConnell, nell, reason to treat nominal “see no Remedies: Cases Laycock, Modern American differently.” 2002) (“The (3d declaratory relief Id. most ed. and Materials 561

1269 granted Moreover, by upon courts the federal of real any be lack controversy surrounding jurisdiction; they of our proper exercise constitution ality now-repealed of a high independent an are not themselves basis Ordinance' lights yet problem another with exer jurisdiction. prayer for that Because jurisdiction cise of our in this it case: declaratory in an oth itself and relief — surely impermissible would constitute an 'moot to give erwise case—is insufficient opinion of advisory the sort federal courts jurisdiction, court federal believe See, e.g., Rice, consistently have avoided. Supreme holdings the de Court’s 246, 404 92 at (“Early U.S. at 404 S.Ct. claratory posi our support relief context ' history, this held that no Court had it in this tion power ”). advisory to opinions.... issue It from Beyond the comfort we draw long has been established that of decisions doctrines, today our decision analogous this, any, court federal must be ground “great delicacy” gravity reflects ed in “a controversy real and substantial in the role in federal courts’ inherent specific of admitting relief de through a on of passing constitutionality legisla- character, cree of a conclusive as distin Valley tive acts. Ashwander v. Tenn. guished opinion advising what Auth., 288, 345, 466, 297 U.S. 56 S.Ct. upon law hypothetical of state (1936) (Brandéis, J., 482, L.Ed. 688 80 246, 92 (quoting faéts.” Id. at at S.Ct. 404 concurring). recognition Our of this deli- Haworth, Aetna Ins. Co. v. Life 300 U.S. power of in favor of cate balance counsels 227, 240-41, 461, 464, 57 S.Ct. 81 L.Ed. 617 generally such de- restraint we’ must (1937)). constitutionality to pass cline on the Indeed, sig Hall v. Beals—a case with necessity in legislation unless “as a nificant factual similarities to our instant real, earnest, determination and vital appeal highlights advisory nature — controversy at individuals.” Id. between any opinion we would render 396 here. 346, 56 (quoting S.Ct. 482 Chi. & 200, U.S. 24 214 90 S.Ct. L.Ed.2d Ry. Wellman, Trunk 143 Co. v. Grand (1969) curiam). (per There the L.Ed. challenge considered to Court a Colorado (1892)); 346-47, see also id. at requiring law six months of in-state resi (“The at 483 Court not ‘antici- S.Ct. will dency prior voting presidential in a elec n question pate a of constitutional law 46-48, tion. Id. 200-02. S.Ct. While ”) necessity deciding advance it.’ the appeal pending, presi the relevant Liverpool, Phila. Co. (quoting N.Y. & S.S. occurred, months dential election six Emigration Comm’rs, 33, 39, passed, Colo and —most importantly —the (1885)). The L.Ed. legislature waiting period rado reduced the question present does not even rise 47-48, months. Id. at two 90' S.Ct. : of a “controversy,” level alone one let 201-02. concluded “real, earnest, that is The Or- and vital.” it history, The 1968 election is itself, necessity dinance and with impossible grant appellants now deciding its constitutionality, has ceased they sought in the relief the District and is than exist now more real Further, appellants now Court. hypothetical statute which the residency the six-month re- satisfied routinely courts should federal decline quirement they complained. which judicia- pass judgment. Our view considerations, the apart But from these ry’s against cautions proper role therefore recent action the Colora- amendatory disposition present surely on the Legislature operated merits has do appeal. case moot. We render review repeal of chal- ing governmental cases light the Colorado judgment below City of Mia- legislation, Tanner and lenged stands, not it once it now as statute mi, III.A, prayer infra valid Section currently- the statute as And did. under negated the damages nominal would have written, voted appellants the could have de- injunctive that the claims fact presidential election. The in the 1968 thereby moot and claratory relief were as lost its case therefore character has There, here, case. as the the entire saved that controversy of the kind present, live in nominal single to a dollar parties’ right advisory if we are to avoid must exist ef- damages type “practical not the is propositions law. opinions on abstract should, alone, support standing that fect” (citations 201-02 Ct. at S. Id. jurisdiction. prayer III If a mere Article omitted). accordingly vacated The an other- damages for nominal could save judgment of the district court and jurisdiction moot wise with dismiss remanded directions manipulated, the mootness court could be moot. case as circumvented, and feder- doctrine could be We, Court, “re- must like required to cases al courts would decide light below judgment view on practical no effect that could have stands, it not as it now [City Ordinance] legal obligations parties. rights stands, it the law as once did.” Under now we ex For the reasons have nothing is more on sexual the ban devices power to plained, simply we are without an hypothetical; novel abstract than a any practical relief from grant Appellants Appellants of law on which proposition cognizable .injury Article Ill’s within advisory For opinion. an urge us to issue scope. They relief the Or requested from centuries, than the federal two more All they have it. that dinance and received ill- accept such declinéd courts that they ask from us here is to label, change advised invitations. We will Analogous achievement as laudable. case now. course law, justiciability, general principles significant that a hold- Finally, find restraint, and judicial bedrock tenets today adopt one we ing contrary to the continuing vitality of mootness doc reduce, outright if drastically such is not a all us that trine convince eliminate, mootness viability Ac of the federal courts. proper function context constitutional nominal doctrine that cordingly, conclude we must similar are this other challenges legislation damages insufficient to save Indeed, challenge.23 in both of this lead- wise moot suits. Circuit’s dispute. precluded adjudicating If holding today prayer nomi that 23. Our damages save this case from nal cannot moot court constitutional determines- occurred, in which imply ness does not that a case dam- actual violation but damages available reme are nominal ages proven, it within its Article III were dy always necessarily This Court moot. damages. If powers to award nominal damages long recognized that "[n]ominal has plaintiff appeals that no the determination plaintiff a vio appropriate if a establishes are appellate proven, the actual were right, constitutional lation of a fundamental jurisdiction to review that likewise has court prove injury even he cannot actual suffi if decision, for actual dam- because the claim compensatory him to cient to entitle dam ages controversy. the live That was maintains Trussville, Outdoor, ages.” LLC v. KH Carey. precisely In the same situation 2006) (quoting 465 F.3d Hughes scenario, court had awarded the district Lott, damages, appellate compensatory but tire Thus, 2003)). alleged where constitu damages award court found some error in the presents live violation an otherwise tional damages, a new and remanded for trial controversy, a district is not case or court violated, rights constitutional Conclusion When IV. difficult, if impossible, it is place above, this For the reasons stated monetary infringement. value “[A] is DIS appeal is MOOT. The rights plaintiff civil seeks to im vindicate panel opinion The remains VA MISSED. portant civil and constitutional rights judgment of the district CATED. solely cannot monetary be valued is VACATED24 the case is RE court Rivera, terms.” Riverside with to dismiss the MANDED instructions case. (1986). rights litigation L.Ed.2d 466 Civil public interest” and “secures “serve[s] DISMISSED. re important social benefits that are not or relatively flected in nominal small dam WILSON, Judge, dissenting, Circuit ages damages Id. Nominal awards....” MARTIN, JORDAN, by joined provide redressing a mechanism for useful ROSENBAUM, PRYOR, and JILL infringements cause no actual dam Judges: Circuit ages. exactly This is how the request I for because Plaintiffs’ dissent damages. Court has described nominal See damages nominal saves this constitutional Maj. Op. (recognizing 1266 is from mootness. This far case conclusion damages ap nominal noted as “the novel; held, in varying from courts have remedy for propriate a constitutional viola eases, damages ‘actual, types that nominal save provable inju tion no that caused See, Morgan from e.g., ry”’). a case v. I mootness. believe the most workable 740, Dist., 748, Indep. bright option Plano Sch. 589 F.3d line allowing rule nomi (5th Media, 2009);Advantage nal damages 748 n.32 Cir. save constitutional claims Prairie, City sig v. evaluating 456 F.3d from mootness. When L.L.C. Eden (8th 793, 2006); damages, Animal 803 Cir. Utah nificance of nominal “it does in City underlying Rights Corp., Coalition v. Salt Lake matter whether the claim 1248, (10th 2004);1 procedural deprivation F.3d volves a 371 1258 Cir. Cty. constitutionally-based right.” v. Los Angeles, Bernhardt 279 F.3d substantive (9th 2002); Pataki, 1289, 862, v. Pa 1301 Cir. See Harden 872 Van Wie (2d 2003) (internal 2001); (11th 109, taki, quotation F.3d 115 Cir. Cir. 267 n.4 n.15 Va., omitted). “Quite con simply, v. Honor Henson Comm. U. marks when (4th violated, 1983); rights Murray plaintiff v. Bd. are Cir. stitutional F.2d Trustees, Louisville, damages F.2d nominal even Univ. recover 1981). though compensable injury.” he suffers disposing damages again practice of a be- have re- case that has claim trial, throughout appeal, and appeal judg- alive mained is to vacate the come moot precisely dismiss."). This was situation in remand. with directions to ment Memphis Community Today’s School District. not, course, holding long- does alter this majority agree- is “in 1. While the substantial standing only prayer We view. hold expressed Judge by the views ment with itself, not, damages nominal does save concurring opinion McConnell in his in Utah mootness case. from an otherwise moot Rights Coalition v. Salt Lake Animal 24. (10th Cir. Corp., F.3d 1262-71 moot, we When a has ordi- become 2004),” Judge majority find I McConnell's narily appeal, dismiss the district vacate persuasive, opinion in same case more judgment, with instruc- court's and remand Lewis, (holding damages that nominal see at 1258 id. tions dismiss the case. See ("Our mootness). ordinary S.Ct. at 1256 save the case Trussville, 1268- Maj. Op. at Outdoor, jurisdiction.” III] LLC KH 2006) (inter 1256, 1261 have to be those two statements But omitted). quotation marks majority’s nal reconciled with the statements here holding “our does footnotes that I. jurisdiction exercise not foreclose allowing about majority’s The concerns only nom- plaintiff claims all cases where damages nominal to save constitutional majority’s damages” “[the inal and that grave not as claim from mootness a case holding imply does] them out to be. majority makes damages avail- are the which nominal majority states: necessarily remedy always able If for nominal prayer a mere n.12, Op. at 1263 1270 n.23 Maj. moot.” moot otherwise could save an added). (emphasis statements latter These manip- be jurisdiction of the court could trying majority are the result ulated, doctrine could mootness contradictory holding with reconcile wpuld circumvented, federal courts (Section A). Also, majority’s precedent that could cases be.required decide pur- holding is and defies unworkable legal effect practical have no (Section B). damages pose of nominal parties. obligations or rights that concede majority Even if the does not allowing to Op. claims Maj. at But by precedent holding is foreclosed its damages on nominal proceed based would unworkable, holding because falters jurisdictional manipu-, no lead to worse confines of this case fall within city happened than lation what here:. exceptions these statements whatever challenged years into repealed a ordinance C). (Section from the footnotes set out just days granted after litigation and damages For to review. nominal en banc Contradictory A. Precedent mootness, the claim save a.claim Carey, Supreme distinguishing In moot and to be otherwise would have case'emphasizing the role nominal Court possible would have be other there majority states: damages, damages still available. type of The cases be checklist would limited. that meet this alleged viola- an constitutional [W]here Indeed, that the circuits have held live case or presents tion an otherwise majority on this seem opposite issue controversy, pre- court is district See, weathering e.g., the storm. Mor- be adjudicating dispute. If cluded from Finally, in gan, at 748 n.32. that a that court constitu- determines effects, regards practical protecting occurred, ac- but that no tional violation in- rights from plaintiffs constitutional damages proven, it within tual were temporary, is a fringement, no matter how powers III award nominal Article practical effect. damages. .plaintiff appeals If that damages that no actual determination II. court appellate were like- proven, is, best, majority’s holding under- The . jurisdiction review deci- wise has worst, and, by its contradicted mined sion, claim for actual dam- because the glance, majority’s At first footnotes. controversy. ages the live maintains holding to be clear and concise. appears So, according to the Maj. Op. at 1270 n.23. “nominal dam- majority The states appropri- majority, damages nominal are an otherwise moot case” ages cannot save in play only damages if actual ate damages] are not them- “[nominal and that the end of but then at throughout the ease independent [Article basis for selves plaintiff prove ages, the case actual fails then must.concede nominal damages. that scenario is And different can damages save a claim from mootness. from here Plaintiffs in this case because 266-67, Carey, See 435 U.S. at requested damages. never actual (“We if, therefore upon hold .that awarding damages, other cases nominal remand, the District Court determines damages the “claim for actual maintains that respondents’ suspensions justi were controversy.” Maj. the live atOp. fied, respondents will nevertheless be enti However, the majority n.23. fails ad- to recover damages tled nominal not to Carey dress the that the statement Su- petitioners.”). exceed dollar from For preme Court that the denial' of “believe[s] concession, without that whenever nominal procedural process action- due should be damages are the last still in remedy play, damages able for nominal without proof no matter how late the case is Carey, actual injury.” U.S. moot, and there would be no cases where S.Ct. at 1054.Actionable is as “fur- defined only nominal damages were awarded. But nishing legal ground for a lawsuit Hobby, those cases exist. See Farrar Actionable, legal action.” Black’s . 113 S.Ct 2014). Therefore, Dictionary Law ed. (1992) L.Ed.2d (affirming award of precedent, under one can damages). majority nominal be bring solely damages, a suit for nominal lieves “elaim[s] actual damages defy which means that nominal controversy.” the live ] But “Ar maintain[ mootness on their This precedent own. requires ticle III of the Constitution majority’s cannot squared with the or controversy there be a live -the damages] statement that are not “[nominal time that federal the court decides case.” independent themselves an basis for [Arti- Barnes, 361, 363, Burke v. jurisdiction.” Maj. cle Op. at 1268-69. III] (1987). 93 L.Ed.2d If a majority The dismisses nominal dam- or court has have a live controver ages “psychic as satisfaction” or akin to an sy when it decides a case and court can opinion.” Maj. Op. “advisory at 1270. only damages, nominal then award nominal Yet, majority acknowledges the that the damages the or contro provide live case has held there are versy. situations the plaintiff where relief damages. would receive nominal See Holding B. Unworkable (“[I]f Maj. Op. court the district majority opinion, a claim for Under on remand that actual dam- determined damages is moot “nominal nominal available, ages were not ‘nev- students on damages- practical would have effect ertheless to recover [would] entitled rights obligations.” Maj. Op. or damages parties’ nominal not to exceed one dol- lar.’”). puts majority posi- This in the Citing trespassing a few 1263. libel tion of admitting give either can examples, majority provides very little or “psychic that nominal dam- satisfaction” elarity what constitutes sufficient ages something are their else. Whatever majority effect.2 The practical rules that is, remedy by answer we can award is moot this case because ordinance itself. repealed. libel has been But as demonstrate, examples nomi- majority agrees trespassing

If the can a case remedying. of only damages past result dam- are about award nominal nal Moreover, majority ground concept 2. fails to its the decisions it refer cites that "practical binding practicality non-binding. test in are effect” law—all The clear, undisturbed direct invasion. To be

wrongs, not future ones. III damages an Article of nominal is made there was award majority concedes it on by dismissing judicial plaintiffs in this case declaration that injury standing grounds right instead mootness been violated. has opinion, majority’s Under the de- grounds. McCormick, on the Charles T. Handbook rights constitutional claring someone’s (em- (1935) § of Damages Law at 85 practical is not a effect. have been violated added). phasis damages Nominal are “[a] speak does not making sure someone Yet injury trifling legal sum when a awarded you your onto land or come poorly about loss is no substantial suffered but there The reasons practical are effects. injury compensated.” or to be Nominal protection to one’s less constitu- granting Dictionary (empha- Damages, Black’s Law rights reputation- than land one’s tional Warden, added); sis see also Brooks v. the exact borders rights al elude me. While 2015) (citing F.3d your reputa- protecting land your DeTella, 936, 941 Calhoun significant, I am surely harm from are tion 2003) (“[Njominal damages are not penumbra of inclined believe compensation injury, for loss or rather but are rights contained in the Constitution recognition De- rights.”)). of a violation of worthy protection. least similar damages, spite the existence nominal ruling, large majority The bases majority states that an accom- “absent on a Tenth concurrence part, Circuit legal rights effect on the panying practical states, “I to treat nominal see no reason us, parties before responsibilities declaratory differently” and relief jurisdiction them give we are without relief “[Ijabeling requested ‘nominal Maj. Low- Op. that satisfaction.”4 ‘declaratory judgment’ damages’ instead of left task of er are now with the courts analysis.” Ani- change Utah should effect deciding practical what constitutes a Coal., at 1265-66 Rights mal I struggle sufficient survive mootness. (McConnell, J., concurring).3 But nominal practical comprehend sufficient effect a declaratory distinct majority’s requirement. meet the damages remedy judgment that nominal majority’s finding ruling that a here would past right: invasion of a troubling. produce “practical no effect” is damages damages Nominal are awarded Exceptions Apply C. Here Majority legal right, of for the infraction If time we take the to consider what a not where the extent loss is do, ruling is clear that in this case would shown, right or not where the ruling practical in a would indeed “have a upon or dependent damage, loss rights obligations.” or parties’ effect on the bodily immunity of or rights the case Sandy Maj. City of rights Op. material at 1263. The property have one’s (‘‘[W]e parties” purposes determining prevail- Maj. Op. are in substan- 3. See attorney’s agreement expressed by ing-party for an tial with the views status award Farrar, Judge concurring § opinion.”) in his McConnell fees under U.S.C. 1988. (internal quotation 113 S.Ct. omitted). Supreme In the marks citation damages majority's ruling 4. The that nominal view, damages judgment "A Court’s legal rights adequately alter the do nominal, amount, compensatory whether responsibilities purposes parties for difficult, behavior for the impossible, modifies the defendant’s justiciability is if not by forcing ruling plaintiff's the defendant square benefit with the Court's money damages pay he otherwise would "ma- an amount Farrar that nominal achieve a legal relationship pay.” alteration Id. terial Springs potentially government violated Plaintiffs’ con- repeals the unconstitution- rights by enacting stitutional law, this al ordi- the violation will be left unad- now, nance. If dressed; we dismiss government gets one free ruling would confirm that such violation pass at violating your constitutional rights. occurred, would be free to reenact I respectfully dissent. date, the ordinance at a later and Plaintiffs relitigate would have to If case. howev-

er we decide this case determine that Springs of Sandy violated the ordinance, enacting

Constitution in

then the City stopped would be from even

reenacting prac- the ordinance. That is a City’s

tical obligations effect on the suffi- PEDRO, Kathleen N. on behalf of cient to save the case from mootness under similarly herself and all others the majority’s holding. See id. situated, Plaintiff-Appellant, Plaintiffs rights believe that their were violated the enactment of the ordinance. They asking recognition for judicial EQUIFAX, INC., Defendant, right again. so that it is not violated rights Declaring that their were violated is LLC, TransUnion Defendant-Appellee. legal significance. Plaintiffs could feel 16-13404 No. secure in knowledge rights their that their were protection violated and have Appeals, United States Court Instead, future infringement. ignore Circuit. Eleventh possible past injury the Plaintiffs’ 24, 2017) (August rights, forcing Plaintiffs wait until a second violation to seek occurs vindication.

Judges go rights in search of need protection,

need plaintiff but when a claims rights

that her constitutional have been

violated, we owe her an answer.

III.

The majority ignores prayer Plaintiffs’ because,

for nominal the ma- view,

jority’s won,” “already Plaintiffs simply nothing

and “there left us to

do.” Except Plaintiffs have not obtained want,

everything they and there is some-

thing left for is to us do—that deter-

mine whether the Plaintiffs’ constitutional

rights repealed were the now violated

ordinance. rights

For a number civil violations

(e.g., speech, procedural process), free due

compensable always ex-

ist. majority opinion, Under long as

Case Details

Case Name: Flanigan's Enterprises, Inc. of Georgia v. City of Sandy Springs, Georgia

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Aug 23, 2017

Citation: 868 F.3d 1248

Docket Number: 14-15499

Court Abbreviation: 11th Cir.