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No. 18-12676-AA Plaintiffs-Appellants V. Defendants-Appellees. Appeal

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No. 18-12676-AA Plaintiffs-Appellants V. Defendants-Appellees. Appeal Case: 18-12676 Date Filed: 08/06/2018 Page: 1 of 78 No. 18-12676-AA UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT CHIKE UZUEGBUNAM AND JOSEPH BRADFORD, Plaintiffs-Appellants v. STANLEY C. PRECZEWSKI, LOIS C. RICHARDSON, JIM B. FATZINGER, TOMAS JIMINEZ, AILEEN C. DOWELL, GENE RUFFIN, CATHERINE JANNICK DOWNEY, TERRANCE SCHNEIDER, COREY HUGHES, REBECCA A. LAWLER, AND SHENNA PERRY Defendants-Appellees. Appeal from the United States District Court for the Northern District of Georgia Case No. 1:16-cv-04658-ELR The Honorable Eleanor L. Ross BRIEF OF PLAINTIFFS-APPELLANTS DAVID A. CORTMAN KRISTEN K. WAGGONER TRAVIS C. BARHAM TYSON C. LANGHOFER ALLIANCE DEFENDING FREEDOM ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Road N.E., 440 1st Street, NW, Ste. 600 Ste. D-1100 Washington, D.C. 20001 Lawrenceville, Georgia 30043 Telephone: (202) 393–8690 Telephone: (770) 339–0774 Facsimile: (202) 347–3622 Facsimile: (770) 339–6744 Attorneys for Appellants Case: 18-12676 Date Filed: 08/06/2018 Page: 2 of 78 Uzuegbunam v. Preczewski, Case No. 18-12676-AA CERTIFICATE OF INTERESTED PERSONS Pursuant to FED. R. APP. P. 26.1(a) and 28(a)(1) and 11th Cir. R. 26.1- 1, 26.1-2, 26.1-3, and 28-1, the undersigned counsel of record certifies that the following listed persons and entities are known to have an inter- est in the outcome of this case or appeal: Alliance Defending Freedom Barham, Travis C. Board of Regents of the University System of Georgia Bradford, Joseph Carr, Christopher Chalmers, Roger Cortman, David A. Cusimano, Ellen Dowell, Aileen C. Downey, Catherine Jannick Fatzinger, Jim B. Georgia Gwinnett College Hughes, Corey Langhofer, Tyson C. Lawler, Rebecca A. Pacious, Kathleen M. Perry, Shenna Preczewski, Stanley C. C-1 of 2 Case: 18-12676 Date Filed: 08/06/2018 Page: 3 of 78 Case: 18-12676 Date Filed: 08/06/2018 Page: 4 of 78 STATEMENT REGARDING ORAL ARGUMENT Appellants Chike Uzuegbunam and Joseph Bradford request oral ar- gument. This case presents important jurisdictional and constitutional questions addressing when citizens—especially students at public uni- versities—may pursue claims against state officials for violating their constitutional freedoms. Because of the important constitutional liberties implicated in this appeal and the nuanced nature of certain of the dis- putes it presents, counsel respectfully submit that oral argument would be of assistance to this Court in resolving the issues on appeal. i Case: 18-12676 Date Filed: 08/06/2018 Page: 5 of 78 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS .................................................... C-1 STATEMENT REGARDING ORAL ARGUMENT ................................................... i TABLE OF CITATIONS ................................................................................... iv STATEMENT OF JURISDICTION ................................................................. xviii STATEMENT OF THE ISSUES .......................................................................... 1 STATEMENT OF THE CASE ............................................................................. 3 I. Nature of the Case .......................................................................... 3 II. Statement of Facts .......................................................................... 5 A. GGC’s Censorship via Speech Zones ......................................... 5 B. GGC’s Censorship via Speech Codes ......................................... 7 III. Procedural History .......................................................................... 8 IV. District Court Opinion .................................................................... 9 V. Standards of Review ..................................................................... 10 SUMMARY OF THE ARGUMENT .................................................................... 11 ARGUMENT ................................................................................................. 13 I. The district court erred in concluding that Plaintiffs’ damages claims were moot under Flanigan’s. ............................................ 13 A. Flanigan’s does not control because Plaintiffs pleaded compensatory damages claims. ................................................ 13 1. The district court wrongly construed the complaint against Plaintiffs to reject their compensatory claims. ... 13 2. The district court wrongly focused solely on the prayer for relief to reject Plaintiffs’ compensatory claims. ......... 17 B. Flanigan’s does not require the dismissal of all nominal damages claims as moot. .......................................................... 21 ii Case: 18-12676 Date Filed: 08/06/2018 Page: 6 of 78 II. Flanigan’s was wrongly decided and should be overruled. ......... 25 A. Flanigan’s conflicts with Supreme Court precedent. ............. 25 1. In general, damages claims prevent mootness. ............... 25 2. Nominal damages claims vindicate the priceless and thus should not be mooted as worthless. .......................... 27 3. Justiciability does not hinge on the amount of relief. ...... 33 B. Flanigan’s conflicts with practically every other circuit. ....... 36 1. First Circuit ....................................................................... 36 2. Second Circuit .................................................................... 37 3. Third Circuit ...................................................................... 38 4. Fourth Circuit .................................................................... 38 5. Fifth Circuit ....................................................................... 40 6. Sixth Circuit ...................................................................... 41 7. Seventh Circuit .................................................................. 42 8. Eighth Circuit .................................................................... 43 9. Ninth Circuit...................................................................... 44 10. Tenth Circuit ..................................................................... 46 11. Eleventh Circuit ................................................................ 47 C. Flanigan’s relies on two isolated opinions that have no legal force and two misplaced analogies. ......................................... 49 III. The district court erred in rejecting Plaintiffs’ request for leave to amend the complaint. ............................................................... 51 CONCLUSION .............................................................................................. 53 RULE 32(g)(1) CERTIFICATE OF COMPLIANCE ............................................. 55 CERTIFICATE OF SERVICE ........................................................................... 56 iii Case: 18-12676 Date Filed: 08/06/2018 Page: 7 of 78 TABLE OF CITATIONS CASES Advantage Media, LLC v. City of Eden Prairie, 456 F.3d 793 (8th Cir. 2006) ................................................................ 44 *Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th Cir. 2005) ...................................................... 15, 20 Almanza v. United Airlines, Inc., 851 F.3d 1060 (11th Cir. 2017) ............................................................ 10 Am. Atheists, Inc. v. Levy Cnty., 2017 WL 6003077 (N.D. Fla. Dec. 3, 2017) ......................................... 22 *Am. Humanist Ass’n v. Greenville Cnty. Sch. Dist., 652 F. App’x 224 (4th Cir. 2016) ......................................................... 39 Am. Humanist Ass’n, Inc. v. Douglas Cnty. Sch. Dist. RE-1, 859 F.3d 1243 (10th Cir. 2017) ............................................................ 47 Amato v. City of Saratoga Springs, 170 F.3d 311 (2nd Cir. 1999) ............................................................... 37 Ashcroft v. Iqbal, 556 U.S. 662 (2009) .............................................................................. 13 Baker v. Carr, 369 U.S. 186 (1962) .............................................................................. 34 Bayer v. Nieman Marcus Grp., Inc., 861 F.3d 853 (9th Cir. 2017) ................................................................ 45 iv Case: 18-12676 Date Filed: 08/06/2018 Page: 8 of 78 Bd. of Pardons v. Allen, 482 U.S. 369 (1987) .............................................................................. 26 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ........................................................................ 13, 14 Bernhardt v. Cnty. of L.A., 279 F.3d 862 (9th Cir. 2002) ................................................................ 45 Beyah v. Coughlin, 789 F.2d 986 (2d Cir. 1986) ........................................................... 37, 38 Blau v. Ft. Thomas Pub. Sch. Dist., 401 F.3d 381 (6th Cir. 2005) ................................................................ 41 Boag v. MacDougdall, 454 U.S. 364 (1982) .............................................................................. 26 Bontkowski v. Smith, 305 F.3d 757 (7th Cir. 2002) ................................................................ 19 *Brinsdon v. McAllen Indep. Sch. Dist., 863 F.3d 338 (5th Cir. 2017) ................................................................ 41 Brody v. Vill. of Port Chester, 345 F.3d 103 (2d Cir. 2003) ................................................................. 37 Brown v. Taylor, 677 F. App’x 924 (5th Cir. 2017) ......................................................... 41 *Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Servs., 532 U.S.
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