Flanigan's Enters., Inc. of Ga. v. City of Sandy Springs

• Decision Date: 23 August 2017
• Docket Number: No. 14-15499,14-15499
• Citation: 868 F.3d 1248
• Parties: FLANIGAN'S ENTERPRISES, INC. OF GEORGIA, Fantastic Visuals, LLC, Plaintiffs-Appellants, Melissa Davenport, Marshall G. Henry, Intervenors-Plaintiffs-Appellants, v. CITY OF SANDY SPRINGS, GEORGIA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

868 F.3d 1248

FLANIGAN'S ENTERPRISES, INC. OF GEORGIA, Fantastic Visuals, LLC, Plaintiffs-Appellants,Melissa Davenport, Marshall G. Henry, Intervenors-Plaintiffs-Appellants,

v.CITY OF SANDY SPRINGS, GEORGIA, Defendant-Appellee.

No. 14-15499

United States Court of Appeals, Eleventh Circuit.

August 23, 2017

Cary Stephen Wiggins, Wiggins Law Group, ATLANTA, GA, for Plaintiffs-Appellants.

Craig Goodmark, Goodmark Law Firm, LLC, DECATUR, GA, Gerald Richard Weber, Jr., Law Offices of Gerry Weber, LLC, ATLANTA, GA, Adam Brett Wolf, Peiffer Rosca Wolf Abdullah Carr & Kane, LLP, SAN FRANCISCO, CA, for Intervenors-Appellants.

Scott D. Bergthold, Harvey S. Gray, Law Office of Scott D. Bergthold, PLLC, CHATTANOOGA, TN, Harvey S. Gray, Gray Rust St. Amand Moffett & Brieske, LLP, ATLANTA, GA, for Defendant-Appellee.

Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, JILL PRYOR, and ANDERSON,^* Circuit Judges.^**

ANDERSON, Circuit Judge:

We granted rehearing en banc to review the constitutionality of a municipal ordinance prohibiting the sale of sexual devices in light of several recent Supreme Court decisions which, it was argued, call into question the continued vitality of this Court's decision in Williams v. Attorney General (Williams IV ), 378 F.3d 1232 (11th Cir. 2004). After we agreed to take the case en banc, the defendant City repealed the challenged portion of its municipal code and, thus, we are confronted with the threshold jurisdictional question of mootness. Because we see no reasonable basis for concluding that the ordinance will be reenacted and because a prayer for nominal damages, by itself, is insufficient to satisfy Article III's jurisdictional requirements, this case is moot. Accordingly, the appeal must be dismissed.

I. Background

In 2009, the City of Sandy Springs, Georgia, (the "City") enacted into law several provisions that, inter alia , prohibited the sale of sexual devices within the City. Specifically, Ordinance 2009-04-24 (the "Ordinance"), codified at Section 38-120 of the City's Code of Ordinances (the "Code"), criminalized the commercial distribution of obscene material, which it defined to include "[a]ny device designed or marketed as useful primarily for the stimulation of human genital organs." Sandy Springs, Ga., Code of Ordinances § 38-120(c).

Shortly after its passage, a group of businesses, including, as relevant here, plaintiff-appellant Fantastic Visuals, LLC, d/b/a Inserection ("Inserection"),¹ brought suit to challenge the Ordinance and several other Code provisions. Inserection is an adult bookstore in Sandy Springs that sells sexually explicit materials, including sexual devices. After the City moved for summary judgment, the district court issued an order severing Inserection's challenge to the Ordinance's prohibition on the sale of sexual devices from the remainder of the pending challenges to other Code provisions. As a result, this appeal involves only a challenge to the City's ban on the sale of sexual devices.

Severing the two challenges allowed additional affected parties to intervene in the instant case without slowing the progress of the other litigation. Accordingly, the district court granted a timely motion to intervene by intervenors-appellants Melissa Davenport ("Davenport") and Marshall G. Henry ("Henry"). Davenport is a Georgia resident who suffers from multiple sclerosis and uses sexual devices with her husband to facilitate intimacy. She seeks to purchase sexual devices in Sandy Springs for her own use and to sell sexual devices to others in Sandy Springs who suffer from the same or a similar condition. Henry, also a Georgia resident, is an artist who uses sexual devices in his artwork. He seeks to purchase sexual devices in Sandy Springs for his own private, sexual activity and for use in his artwork. He also seeks to sell his artwork in the City. Inserection, Davenport, and Henry (collectively, "Appellants") raised several challenges to the Ordinance arising under both the United States and Georgia Constitutions, including, as relevant here, a Fourteenth Amendment Due Process claim.² Appellants specifically requested declaratory and injunctive relief striking down the Ordinance as unconstitutional and permanently enjoining its enforcement. Additionally, both Davenport and Henry requested an award of nominal damages against the City.³

The City moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The district court granted the City's motion and entered an order upholding the Ordinance. Appellants filed a timely notice of appeal, arguing that the district court erred in entering judgment in favor of the City. A panel of this Court, after briefing and oral argument, found that the district court committed no reversible error and affirmed. Flanigan's Enters., Inc. of Ga. v. City of Sandy Springs , 831 F.3d 1342, 1344 (11th Cir. 2016), vacated , 864 F.3d 1258 (11th Cir. 2017). The panel held that it was bound to follow the holding in Williams IV and suggested that Appellants seek rehearing en banc. Id. at 1348 ("Therefore, unless and until our holding in Williams IV is overruled en banc, or by the Supreme Court, we are bound to follow it.... Appellants are free to petition the court to reconsider our decision en banc, and we encourage them to do so.").

On March 14, 2017, a majority of the judges of this Court in active service voted in favor of granting rehearing en banc and the panel opinion was, accordingly, vacated. On March 21, 2017—one week after rehearing was granted—the City Council unanimously voted to repeal the portion of its Ordinance at issue in this appeal. See Sandy Springs, Ga., Ordinance 2017-03-05 (Mar. 21, 2017). Citing this repeal, the City subsequently filed a motion to dismiss for mootness in which it, through its attorney, expressly "disavow[ed] any intent to adopt such a regulation in the future." The parties submitted further briefing on the issue of mootness and the City's motion was carried with the case to oral argument.

After briefing on the merits had been completed, oral argument was held before the en banc Court on June 6, 2017. On the same day—in a move it argues was designed to "endorse" its attorney's representations at oral argument—the City passed a resolution regarding the now-repealed Ordinance. See Sandy Springs, Ga., Resolution 2017-06-85 (June 6, 2017). In this resolution, which also passed unanimously, the City: (1) noted that the Ordinance "was never enforced during the years that it was in effect;" (2) "disavow[ed] any intent to reenact [the Ordinance] or any similar regulation;" and (3) claimed that the repeal of the Ordinance "eliminated an inconsistency in the City's Code between the [now-repealed] prohibition on the sale of obscene devices and the City's zoning and licensing ordinances that license and regulate stores which sell them." Moreover, the City conceded that its interest in minimizing the secondary effects of the sale of sexual devices—one of the two grounds on which the City had defended the Ordinance—was effectively served by its existing zoning and licensing regulations. Pursuant to, and in compliance with, Rule 28(j) of the Federal Rules of Appellate Procedure, the City advised the Court of its resolution on the same day it was passed.

II. Standard of Review

We consider the question of mootness de novo . Coral Springs St. Sys., Inc. v. City of Sunrise , 371 F.3d 1320, 1328 (11th Cir. 2004).

III. Discussion

It is well established that "[u]nder Article III of the Constitution, federal courts may adjudicate only actual, ongoing cases or controversies." Lewis v. Cont'l Bank Corp. , 494 U.S. 472, 477, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400 (1990). At a minimum, this requirement means that "a litigant must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Id. at 477, 110 S.Ct. at 1253. Moreover, this "actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." Arizonans for Official English v. Arizona , 520 U.S. 43, 67, 117 S.Ct. 1055, 1068, 137 L.Ed.2d 170 (1997) (quoting Preiser v. Newkirk , 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975) ). As a result, the Supreme Court has routinely cautioned that a case becomes moot "if an event occurs while a case is pending on appeal that makes it impossible for the court to grant ‘any effectual relief whatever’ to a prevailing party." Church of Scientology of Cal. v. United States , 506 U.S. 9, 12, 113 S.Ct. 447, 449, 121 L.Ed.2d 313 (1992) (quoting Mills v. Green , 159 U.S. 651, 653, 16 S.Ct. 132, 133, 40 L.Ed. 293 (1895) ). Thus, even a once-justiciable case becomes moot and must be dismissed "when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack , 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969).

Addressing our jurisdiction in the instant case requires us to undertake two related inquires. First, we must ask whether the City's repeal of the relevant portion of the Ordinance has rendered moot Appellants' claims for declaratory and injunctive relief. If those claims are moot, we must then consider whether their prayer for nominal damages is sufficient to save an otherwise non-justiciable case. We address each in turn.

A. Declaratory and Injunctive Relief

As discussed above, a case generally becomes moot and must be dismissed, even if already on appeal, "when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome." Id. at 496, 89 S.Ct. at 1951. The doctrine of voluntary cessation, however, provides an important exception to this general rule. Indeed, as the Supreme Court has long recognized, the "voluntary cessation of allegedly illegal conduct does not deprive the tribunal...