UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
SUNDAY DASKALEA, et al.,
Plaintiffs, Civil Action No. 03-2074 (CKK) v.
WASHINGTON HUMANE SOCIETY, et al.,
Defendants.
MEMORANDUM OPINION (May 2, 2010)
Plaintiffs are self-described pet owners in the District of Columbia who allege that their
pets were seized, detained, and damaged by Defendants without due process of the law.
Presently at issue is Plaintiffs’ allegation in Count II of their Amended Complaint that the
District of Columbia’s Freedom from Cruelty to Animal Protection Act, D.C. Code § 22-1001 et
seq. (hereinafter, the “Act”), is facially unconstitutional because it fails to provide animal owners
with a meaningful right to contest the seizure, detention, and terms of release of their pets, prior
to final action. The challenged provisions of the Act, however, were recently amended
(subsequent to the filing of Plaintiffs’ lawsuit) by passage of D.C. Act 17-493, entitled the
“Animal Protection Amendment Act of 2008” (hereinafter, the “2008 Amendment”). The Court
therefore ordered the parties to submit supplemental briefing addressing the impact of the recent
amendments to the Act on Plaintiffs’ facial challenge and, specifically, whether Plaintiffs’ claim
of facial unconstitutionality is now moot. The parties have since filed the required briefing, and
the Court is now tasked with determining whether Plaintiffs’ facial challenge is moot in light of
the new legislation. Upon consideration of the parties’ supplemental memoranda, relevant case law, statutory and regulatory authority, as well as the record of this case as a whole, the Court
finds that Plaintiffs’ facial challenge to the constitutionality of the Act has in fact been rendered
moot by the 2008 Amendment. Accordingly, for the reasons set forth below, the Court shall
DISMISS Count II of the Amended Complaint as MOOT insofar as it asserts a facial challenge to
the constitutionality of the Act.
I. BACKGROUND
The Court assumes familiarity with the factual background of this case, which is set forth
in detail in this Court’s previous opinions and is incorporated herein. See Daskalea v.
Washington Humane Society, 577 F. Supp. 2d 82 (D.D.C. 2008) (hereinafter, “Daskalea I”);
Daskelea v. Washington Humane Society, 577 F. Supp. 90 (D.D.C. 2008). Accordingly, the
Court addresses only such facts as are necessary for resolution of the issues currently before the
Court.
Plaintiffs Sunday Daskalea, Frances Norris, and Willie Jackson allege that they “are pet
owners in the District of Columbia who have had their pets seized, detained and damaged
without due process of law.” Am. Compl. ¶ 1. Plaintiffs’ Amended Complaint names as
Defendants the District of Columbia (hereinafter, “D.C.” or the “District”); Jody Huckaby,
individually and in her official capacity as Executive Director of the Washington Humane
Society (“WHS”); Adam Parascandola, individually and in his official capacity as Director of
Law Enforcement for WHS; Sonya Scnoor, individually and in her official capacity as the WHS
law enforcement officer who seized and detained Ms. Daskalea’s dog; Rosemary Vozobule,
individually and in her official capacity as a WHS law enforcement officer who refused to return
Ms. Daskalea’s dog; Lindsay Gardewin, individually and in her official capacity as a WHS law
2 enforcement officer who seized and refused to return Mr. Jackson’s dog; and H.O. Boozer,
individually and in her official capacity as the WHS law enforcement officer who seized and
refused to return Dr. Norris’s dog (collectively, the “Individual Defendants”).1
Plaintiffs’ Amended Complaint includes both constitutional challenges to the Act and
common law claims regarding the alleged seizure, detention, and damaging of Plaintiffs’ pets.
See generally Am. Compl. In particular, Count II alleges that the Act is unconstitutional on its
face and as customarily enforced, and Count III alleges that Defendants’ application of the Act to
the individual Plaintiffs violated their due process rights. Id. ¶¶ 75-80. Both Counts II and III
remain extant at this time. As explained above, this Memorandum Opinion focuses solely on
Plaintiffs’ facial challenge to the constitutionality of the Act as set forth in Count II of the
Amended Complaint.
Specifically, Plaintiffs contend that the Act “is unconstitutional because as written . . . it
fails to provide animal owners with a meaningful right to contest the seizure, detention, and
terms of release of their pets, prior [to] final action which permanently affects a pet owner’s
1 Plaintiffs’ Amended Complaint originally named the Washington Humane Society as a Defendant in this action as well. WHS, however, is no longer a defendant in this action, as Judge John Garrett Penn — to whom this case was previously assigned — determined that WHS is non sui juris and therefore granted WHS’ motion to dismiss Plaintiffs’ Amended Complaint as against WHS. See Daskalea v. Washington Humane Society, 480 F. Supp. 2d 16, 22-24 (D.D.C. 2007). In addition, Plaintiffs’ Amended Complaint names as defendants John Does 1-10, who are alleged WHS law enforcement officers, directors, and or members “whose identities are presently unknown to plaintiffs, and who illegally seized and detained the pets of the plaintiff class.” Am. Compl. ¶ 17. Plaintiffs Daskalea, Norris, and Jackson bring their Amended Complaint on their own behalf and on behalf of an alleged class of “similarly situated pet owners living in the District of Colombia, and those persons who are not residents of the District, but who have had their animals seized by defendants, on or after August 4, 2000,” the date of the Act’s enactment. Am. Compl. ¶ 142. Plaintiff’s Motion for Class Certification, filed May 28, 2004, has been held in abeyance pending resolution of the parties’ motions with respect to Plaintiffs’ facial challenge. See 11/20/07 Order, Docket No. [49].
3 rights.” Id. ¶ 75. Plaintiffs focus on D.C. Code § 22-1004, which is entitled “Arrests without
warrant authorized; notice to owner.” At the time the Plaintiffs’ lawsuit was filed and the
complained-of events allegedly occurred, section 22-1004 consisted of the following two
paragraphs — (a) & (b) — reprinted in full below:
(a) Any person found violating the laws in relation to cruelty to animals may be arrested and held without a warrant . . . . The person making the arrest or the humane officer taking possession of an animal shall have a lien on said animals for the expense of such care and provisions.
(b)(1) A humane officer of the Washington Humane Society may take possession of any animal to protect it from neglect or cruelty. The person taking possession of the animal or animals, shall use reasonable diligence to give notice thereof to the owner of animals found in the charge or custody of [a] person arrested, and shall properly care for the animals until the owner shall take charge of the animals; provided that, the owner shall take charge of the animals within 20 days from the date of the notice.
(2) If the owner or custodian of the animal or animals fails to respond after 20 days, the animal or animals shall become the property of the Washington Humane Society and the Washington Humane Society shall have the authority to:
(A) Place the animal or animals up for adoption in a suitable home;
(B) Retain the animal or animals; or
(C) Humanely destroy the animal or animals.
D.C. Code § 22-1004.
Based upon the statutory language existing at the time of filing, Plaintiffs allege that the
Act is unconstitutional on its face because of “its complete failure to provide notice and a
meaningful opportunity for pet owners to contest the seizure, detention, terms of release and
treatment of their pets, and the fees and terms associated therewith.” Am. Compl. ¶ 76. In
particular, Plaintiffs challenge the Act’s alleged failure to
(1) establish reasonable and articulable standards for the seizure of pets; (2) to
4 provide reasonable notice and a meaningful opportunity to be heard to contest the seizure, detention, release terms and treatment of pets; (3) to set reasonable and articulable standards for the release of seized pets; (4) to prevent involuntary medical treatment of pets; and (5) [to prevent] the imposition of arbitrary and capricious fines, penalties and fees.
Id. ¶ 76.
Plaintiffs initially moved for partial summary judgment on their facial challenge in late
2007, shortly after the case was reassigned to this Court. See Pls.’ Mot. for Partial Summ. J.,
Docket No. [42]. The Court denied that motion without prejudice, finding that the parties’
briefing in connection with Plaintiffs’ motion was “simply insufficient to allow the Court to
resolve that question.” Daskalea I, 577 F. Supp. 2d at 83. Plaintiffs were granted leave to file a
renewed partial motion for summary judgment on their facial challenge, which they did in
September of 2008. See Pls.’ Renewed Mot. for Partial Summ. J. as to the Facial
Unconstitutionality of Count II of the Am. Compl, Docket No. [64]. The motion was opposed by
both the District and the Individual Defendants. As is relevant here, in filing its Opposition to
Plaintiffs’ motion, the District notified the Court for the first time that the D.C. Council had
passed and the Mayor had signed D.C. Act 17-493, known as the “Animal Protection
Amendment Act of 2008.” See District’s Opp’n, Docket No. [65], at 2. The District explained
that the 2008 Amendment, which was at that time pending before Congress as part of the
legislative review process, amended D.C. Code § 22-1004 — i.e., the very statutory provision
upon which Plaintiffs’ facial challenge focuses. Id. at 2-3. Specifically, the 2008 Amendment,
in relevant part, added a new substantive subsection (c) to D.C. Code § 22-1004, as follows:
5 (c)(1) The Mayor shall establish by rulemaking a notice and hearing process for the owner of the animal to contest the seizure, detention, and terms of release and treatment of the animal, the allegation of cruelty, abandonment, or neglect, and the imposition of the lien and costs assessed for caring and providing for the animal.
(2) Within 30 days of December 5, 2008, the proposed rules shall be submitted to the Council for a 45-day period of review, excluding weekends, legal holidays, and days of Council recess. If the Council does not approve or disapprove of the proposed rules, by resolution, within the 45-day review period, the rules shall be deemed approved.
D.C. Code § 22-1004(c). Based on the passage of the 2008 Amendment, the District argued that
“Plaintiffs’ facial invalidity claims are now moot, because the Council has passed new legislation
addressing the specific problems alleged by plaintiffs.” District’s Opp’n, Docket No. [65], at 4-
7.2
Plaintiffs disagreed, arguing in Reply that their facial challenge to the Act had not been
rendered moot by the passage of the 2008 Amendment. See Pls.’ Reply, Docket No. [67], at 2-4.
Plaintiffs advanced two arguments in support of this position. First, Plaintiffs argued that until
the 2008 Amendment took effect and until the implementing regulations were in fact
promulgated and approved, the District could not demonstrate that the alleged violations were
unlikely to recur. See id. at 2 (“The interim event relied upon by the District is the proposed
enactment of the [2008 Amendment]. This statutory revision may, sometime in 2009, or later,
become law. If it does, the Mayor may begin the process of rulemaking, and constitutionally
adequate procedural rules may emerge. However, unless and until these events happen, pet
owners are today, and for a considerable period of time in the future, subject to denial of due
2 The Individual Defendants incorporated the District’s argument on this point in their opposition to Plaintiffs’ motion, which was filed separately. See Indiv. Def.’s Mem. in Opp’n, Docket No. [66], at 2, n. 2.
6 process.”) (emphasis in original). Second, Plaintiffs argued that because their suit requested
damages as well as injunctive and declaratory relief, Plaintiffs’ facial challenge remained viable.
Id. at 3.
Shortly after briefing on Plaintiffs’ renewed partial motion for summary judgment was
complete, the District filed a Notice advising the Court that the 2008 Amendment had survived
Congressional review and had therefore become law, effective December 5, 2008. See District’s
Not., Docket No. [68]. The District also advised that the Mayor had, pursuant to the newly
amended section 22-1004(c), submitted notice of emergency and proposed rulemaking to the
D.C. Council, setting forth a “notice and hearing process for the owner of [a seized] animal.” See
id. & Att. 1 (copy of Notice of Emergency and Proposed Rulemaking). The District later notified
the Court that those proposed rules were approved by the D.C. Council without any substantive
modification on March 3, 2009. See Status Report, Docket No. [69]; see also 56 D.C. Reg. 2104
(Mar. 3, 2009). The final rules, which are now codified at D.C. Mun. Reg. tit. 24, § 1500 et seq.
(2009), amend Title 24 of the District of Columbia Municipal Regulations to add a new chapter,
Chapter 15, entitled “Hearing Procedures for Washington Humane Society.” As set forth therein,
“[t]he purpose of the[] rules is to establish a notice and hearing process for the owner of an
animal seized pursuant to [D.C. Code § 22-1004(b)(1)] . . . to contest the seizure, detention, and
terms of release; the treatment of the animal; any allegation of cruelty, abandonment, or neglect;
and the imposition of any lien and costs assessed for caring and providing for the animal.” D.C.
Mun. Reg. tit. 24, § 1500.1.
In light of this development, the Court issued an Order denying Plaintiffs’ renewed
motion for partial summary judgment without prejudice and directing the parties “to submit
7 supplemental briefing addressing whether Plaintiffs’ facial challenge to the District’s animal
cruelty statute is now moot,” given that both the 2008 Amendment and its implementing
regulations had since gone into effect. 7/8/09 Order, Docket No. [70], at 3. The Court advised
the parties that once it had ruled on the question of mootness, it would permit Plaintiffs to re-file
their motion for partial summary judgment if their claim remained viable. Id. In addition, in
order to guide the parties’ discussion of the mootness inquiry on re-briefing, the Court noted that,
although Plaintiffs’ briefing on this point is unclear, the Court has understood that Plaintiffs are seeking only injunctive and declaratory relief (and not monetary relief) based on their claim of facial unconstitutionality — that is, that any claim for damages relating to the alleged unconstitutionality of the statute is asserted in conjunction with Plaintiffs’ as-applied claim in Count III of the Amended Complaint and not in conjunction with Plaintiffs’ facial challenge in Count II. Thus, although Plaintiffs correctly note that their “suit is for damages, as well as for injunctive and declaratory relief,” see Pls.’ Reply at 3, the Court understands that their specific claim of facial unconstitutionality seeks only injunctive and declaratory relief. Consequently, the fact that Plaintiffs request damages is not relevant to the question of whether Plaintiffs’ facial challenge is now moot. To the extent that Plaintiffs assert to the contrary, however, Plaintiffs must provide the Court with a legal basis for their assertion that they are entitled to monetary damages based upon their facial unconstitutionality claim.
Id. at 3-4 (emphasis in original).
This matter now comes before the Court on the filing of the parties’ supplemental briefs
addressing the question of mootness. Pursuant to the schedule proposed by the parties and
adopted by the Court, Plaintiffs filed an opening Supplemental Memorandum on the Issues of
Mootness and Damages. Pls.’ Supp. Mem., Docket No. [72]. The Individual Defendants and the
District each filed an Opposition to Plaintiffs’ Supplemental Memorandum. Ind. Defs.’ Opp’n,
Docket No. [73]; District’s Opp’n, Docket No. [74]. Plaintiffs declined to file any reply.
Accordingly, briefing is now complete, and the Court turns to consider whether Plaintiffs’ facial
8 challenge to the Act, as set forth in Count II of the Amended Complaint, is now moot.
II. LEGAL STANDARD
A. Standard for Dismissal Pursuant to Rule 12(b)(1) for Lack of Subject Matter
Federal courts are courts of limited jurisdiction and the law presumes that “a cause lies
outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994);
see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Grand Lodge of Fraternal
Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (stating that a court has an
“affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority”).
A court must therefore dismiss a case or claim when it lacks subject matter jurisdiction pursuant
to Rule 12(b)(1). In so doing, the Court may “consider the complaint supplemented by
undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus
the court’s resolution of disputed facts.” Coalition for Underground Expansion v. Mineta, 333
F.3d 193, 198 (D.C. Cir. 2003) (citations omitted); see also Jerome Stevens Pharm., Inc. v. Food
& Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005) (“[T]he district court may consider
materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of
jurisdiction.”). A court must, however, accept as true all factual allegations contained in the
complaint and afford the plaintiff the benefit of all favorable inferences that can be drawn from
the alleged facts. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit,
507 U.S. 163, 164 (1993). Nonetheless, in spite of the favorable inferences that a plaintiff
receives on a motion to dismiss, it remains the plaintiff’s burden to prove subject matter
jurisdiction by a preponderance of the evidence. Am. Farm Bureau v. Envtl. Prot. Agency, 121 F.
Supp. 2d 84, 90 (D.D.C. 2000).
9 B. Mootness
“Article III of the Constitution restricts the federal courts to deciding only ‘actual,
ongoing controversies,’ and a federal court has no ‘power to render advisory opinions [or] . . .
decide questions that cannot affect the rights of litigants in the case before them.’” Nat’l Black
Police Ass’n v. D.C., 108 F.3d 346, 349 (D.C. Cir. 1997) (internal citations omitted) (quoting
Honig v. Doe, 484 U.S. 305, 317 (1988) and Preiser v. Newkirk, 422 U.S. 295, 401 (1975)). The
case or controversy requirement “means that, throughout the litigation, the plaintiff must have
suffered, or be threatened with, an actual injury traceable to the defendant and likely to be
redressed by a favorable judicial decision.” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (internal
quotation marks omitted). In other words, “a live controversy must exist at all stages of review.”
Nat’l Black Police Ass’n, 108 F.3d at 349. “Hence, ‘[e]ven where litigation poses a live
controversy when filed, . . . [this] court [must] refrain from deciding it if ‘events have so
transpired that the decision will neither presently affect the parties’ rights nor have a
more-than-speculative chance of affecting them in the future.’” Id. (quoting Clarke v. United
States, 915 F.2d 699, 701 (D.C. Cir. 1990) (en banc)); see also 21st Century Telesis Joint
Venture v. Fed. Commc’n Comm’n, 318 F.3d 192, 198 (D.C. Cir. 2003) (explaining that a court
must evaluate mootness “through all stages” of the litigation to ensure that a live controversy
remains).
Where, as here, the intervening event that arguably ends the live controversy between
Plaintiffs and Defendants is the District’s enactment of new legislative, “voluntary cessation
analysis governs [the Court’s] mootness inquiry.” See Nat’l Black Police Ass’n, 108 F.3d at 349.
“Although generally voluntary cessation of challenged activity does not moot a case, a court may
10 conclude that voluntary cessation has rendered a case moot if the party urging mootness
demonstrates that (1) ‘there is no reasonable expectation that the alleged violation will recur,’
and (2) ‘interim relief or events have completely or irrevocably eradicated the effects of the
alleged violation.’” Id. (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)).
III. DISCUSSION
Plaintiffs concede that the first requirement of the voluntary cessation test set forth above
is satisfied in this case, see Pls.’ Supp. Mem. at 3, n. 2 (“Plaintiffs agree that the District[’s]
enactment of the amended statute satisfies the first prong of the [County of Los Angeles v. ]
Davis test . . . .”), and for good reason. As the D.C. Circuit has held, where the alleged violation
has been mooted by the passage of legislation, “the mere power to reenact a challenged law is not
a sufficient basis on which a court can conclude that a reasonable expectation of recurrence
exists. Rather, there must be evidence indicating that the challenged law likely will be
reenacted.” Nat’l Black Police Ass’n, 108 F.3d at 349. In the case at hand, there is no evidence
that the District will repeal the 2008 Amendment and its implementing regulations. “The
Council has not ‘announced . . . such an intention,’ and indeed its enactment of the new
legislation evinces an intent to the contrary.” Id. at 349-50 (quoting City of Mesquite v.
Alladin’s Castle, Inc., 455 U.S. 283, 289 n. 11 (1982)). Accordingly, as Plaintiffs correctly
acknowledge, given the enactment of the 2008 Amendment and implementing regulations, “there
is no reasonable expectation that the alleged violation will recur.” Pls.’ Supp. Mem. at 3, n. 2.
Plaintiffs, however, do argue that the second prong of the test outlined above is not met in
this case. See id. at 3. As indicated above, this second inquiry considers whether the “‘interim
relief or events have completely or irrevocably eradicated the effects of the alleged violation.’”
11 Nat’l Black Police Ass’n, 108 F.3d at 349 (quoting Davis, 440 U.S. at 631). In the context of a
facial challenge to a statute, which seeks to have the statute “declared unconstitutional and
enjoined,” this prong is generally satisfied where — as a result of the enactment of the new
legislation — the prior version of the statute is “no longer in force” and there is no allegation that
the pre-amendment provisions “continue to have any residual effect.” Id. at 350. See also Kan.
Judicial Review v. Stout, 562 F.3d 1240, 1246 (10th Cir. 2009) (“Generally, repeal of a
challenged statute causes a case to become moot because it extinguishes the plaintiff’s legally
cognizable interest in the outcome, rendering any remedial action by the court ineffectual.”);
Khodara Evntl., Inc. v. Beckman, 237 F.3d 186, 194 (3d Cir. 2001) (“Simply put, a declaration of
unconstitutionality or injunction directed against the objectionable features of [an amended
statute] would serve no purpose today.”); see also Citizens for Responsible Gov’t State Political
Action Comm. v. Davidson, 236 F.3d 1174, 112 (10th Cir. 2000) (“The parties have no legally
cognizable interest in the constitutional validity of an obsolete statute.”); Nat’l Adver. Co. v.
The City and Co. of Denver, 912 F.2d 405, 411 (10th Cir. 1990) (“A declaratory judgment on the
validity of a repealed ordinance is a textbook example of advising what the law would be upon a
hypothetical state of facts.”) (internal quotation marks omitted); In re Bunker Ltd. P’ship, 820
F.2d 308, 311 (9th Cir. 1987) (“Where intervening legislation has settled a controversy involving
only injunctive or declaratory relief, the controversy has become moot.”).
In this case, the prior version of the Act — i.e., the version Plaintiffs allege is facially
unconstitutional — is “no longer in force” and Plaintiffs have made no allegation that the pre-
amendment provisions “continue to have any residual effect.” See Nat’l Black Police Ass’n, 108
F.3d at 350. Indeed, Plaintiffs concede that the Act, as amended, now “provides due process to
12 future claimants,” and they advance no argument that the newly amended Act is itself facially
unconstitutional. See Pls.’ Supp. Mem. at 1. Given this concession, it would seem clear that
“declaratory and injunctive relief would no longer be appropriate.” Nat’l Black Police Ass’n, 108
F.3d at 350. Indeed, Plaintiffs themselves “agree that their request for injunctive relief is moot.”
Pls.’ Supp. Mem. at 2, n. 1. Nonetheless, Plaintiffs maintain that their request for declaratory
relief, by contrast, has not been rendered moot by the enactment of the 2008 Amendment. See id.
at 5. Specifically, Plaintiffs argue that an award of declaratory relief in their favor as to the
unconstitutionality of the Act as previously written would entitle them to monetary damages. See
id. (“Plaintiffs would be entitled to monetary damages based on their facial unconstitutionality
claim, should the grant a declaratory judgment.”). Accordingly, because the existence of a claim
for monetary damages saves a claim from mootness, Plaintiffs conclude that their facial
challenge to the Act remains viable insofar as they seek declaratory and monetary relief. For the
reasons set forth below, the Court finds that this argument is wholly lacking in merit.
A. Declaratory Judgment
First, with respect to Plaintiffs’ claim for declaratory relief, the case law is clear that “a
declaration of unconstitutionality . . . against the objectionable features of the [pre-amendment
version of the Act] would serve no purpose today.” Khodara Envtl., Inc., 237 F.3d at 194.
“‘Where a law is amended so as to remove its challenged features, the claim . . . becomes moot
as to those features.’” Id. (quoting Naturist Soc., Inc. v. Fillyaw, 958 F.2d 1515, 1520 (11th Cir.
1992)). In this case, a declaration that the now-obsolete provisions of the Act are facially
unconstitutional would serve no purpose today. Plaintiffs themselves agree that the 2008
Amendment and its implementing regulations have remedied any alleged constitutional
13 deficiencies in the prior version. See Pls.’ Supp. Mem. at 1 (agreeing that “the new Act provides
due process to future claimants”). Given this concession, it is clear that “declaratory . . . relief
would no longer be appropriate.” Nat’l Black Police Ass’n, 108 F.3d at 350.
Plaintiffs’ arguments to the contrary are without merit. As outlined above, Plaintiffs
argue that their request for declaratory relief is not moot because a declaration that the Act, as
previously written, is facially unconstitutional would then entitle Plaintiffs to monetary damages.
See Pls.’ Supp. Mem. at 5 (“Plaintiffs would be entitled to monetary damages based on their
facial unconstitutionality claim, should the grant a declaratory judgment.”). For the reasons set
forth below, however, the Court finds that Plaintiffs do not state a viable claim for monetary
damages based upon their facial challenge to a now-obsolete version of the Act. Accordingly, as
Plaintiffs have offered no other argument in support of their position, see generally id. at 3-5, the
Court finds that Plaintiffs’ request for declaratory relief based on their facial challenge is now
moot.
B. Monetary Damages
Second, Plaintiffs argue that their facial constitutionality claim is not moot because
Plaintiffs request monetary damages in connection with that claim. The Court disagrees. While
“[a] case is saved from mootness if a viable claim for damages exists,” Khodara Envtl., Inc., 237
F.3d at 196 (emphasis added) (quoting Nat’l Iranian Oil Co. v. Mapco Int’l, Inc., 983 F.2d 485,
489 (3d Cir.1992)), the claim for damages must be just that — a viable claim that is neither
“insubstantial” or “clearly foreclosed by prior decisions.” Memphis Light, Gas & Water Div. v.
Craft, 436 U.S. 1, 9 (1978); see also Tanner Adver. Group, L.L.C. v. Fayette Co., Georgia, 451
F.3d 777, 786 (11th Cir. 2006) (“A request for damages that is barred as a matter of law cannot
14 save a case from mootness.”). In this case, Plaintiffs have not asserted a viable claim for
monetary damages in connection with their facial challenge. As such, their facial challenge to
the pre-amendment version of the Act is not saved from mootness.
As an initial matter, the Court notes that Plaintiffs have failed to proffer any case law in
support of their position that they are entitled to monetary damages in connection with their
facial challenge. Indeed, Plaintiffs have not cited a single case in which monetary damages were
awarded in connection with a facial due process challenge to the constitutionality of a statute, let
alone a statute that has since been repealed and/or amended. See generally Pls.’ Supp. Mem.
Plaintiffs’ failure to identify any such case law is particularly telling given that Plaintiffs were
specifically directed by the Court in its July 8, 2009 Order to “provide the Court with a legal
basis for their assertion that they are entitled to monetary damages based upon their facial
unconstitutionality claim.” July 8, 2009 Order, Docket No. [70], at 3-4. Moreover, although this
omission was noted by the District in its opposition briefing, see District’s Opp’n at 5 (observing
that “Plaintiffs have not presented any case (and the District has been unable to find any) where
compensatory damages were awarded (or are available) based solely on the existence of an
unconstitutional statute”), Plaintiffs chose not to file a reply or otherwise attempt to provide the
Court with case law to the contrary. The present record is therefore devoid of any case law or
other legal authority supporting Plaintiffs’ assertion that they are entitled to damages in
connection with their claim that the Act, as previously written, failed to provide sufficient due
process.
The reason for this dearth of case law is clear: Plaintiffs cannot state a viable claim for
monetary damages in connection with their facial challenge. Plaintiffs’ arguments on this point
15 are based on a fundamental misunderstanding of the differences between their facial
constitutionality challenge, which is the sole claim now at issue, and their as-applied challenge to
the Act. As Plaintiffs themselves acknowledge in their Supplemental Memorandum, the
individual Plaintiffs claim that they were injured by the allegedly “unlawful acts” taken by the
Individual Defendants pursuant to the terms of the Act as previously written — i.e., that they
“suffered actual damages when their pets were seized under the prior Act.” Pls.’ Supp. Mem. at
1, 8. In other words, Plaintiffs allege that they were damaged by the manner in which the prior
version of the animal cruelty statute was applied to them. Plaintiffs have not, however, alleged
— nor do they now argue — that they were damaged in any way by the enactment of the
allegedly unconstitutional statute in this case. Accordingly, although in certain circumstances a
plaintiff may arguably be injured by the mere enactment of a facially unconstitutional statute —
for example, where a plaintiff alleges that enactment of a statute by itself has effected a taking of
property or has violated the First Amendment — that is not the case at hand. Here, Plaintiffs’
injuries, and hence their claims for damages, stem from the allegedly unconstitutional application
of the Act in a manner that permitted their pets to be seized and detained without due process.
Plaintiffs’ claim for compensatory damages in relation to their facial challenge therefore
cannot succeed. In arguing that they are entitled to monetary damages in connection with their
facial challenge to the Act, Plaintiffs principally rely upon 42 U.S.C. § 1983. See Pls.’ Supp.
Mem. at 5-6. Plaintiffs contend that if the Court were to declare the Act unconstitutional as
previously written, the Court could then “order any ‘necessary or proper relief’ based on the
declaratory judgment” pursuant to 28 U.S.C. § 2202 — including, in particular, damages
pursuant to section 1983. Id. at 6. The “‘the basic purpose’ of § 1983 damages,” however, “is
16 ‘to compensate persons for injuries that are caused by the deprivation of constitutional rights.’”
Memphis Comm’ty Sch. Dist. v. Stachura, 477 U.S. 299, 307 (1986) (emphasis added by
Supreme Court in Memphis) (quoting Carey v. Piphus, 435 U.S. 247, 254 (1978)). Accordingly,
even where a plaintiff alleges violations of his constitutional due process rights — rights which
are “central to our system of ordered liberty” — the Supreme Court has “nevertheless held that
no compensatory damages [can] be awarded for violation of that right absent proof of actual
injury.” Id. (citations omitted) (emphasis in original). Thus, while Plaintiffs may be entitled to
compensatory damages in connection with their as-applied challenge to the constitutionality of
the Act, they are not entitled to compensatory damages in connection with their facial challenge.
Plaintiffs attempt to save their monetary damages claim by noting that “[a]bsent
demonstrable compensatory damages, when a court finds a constitutional violation in an action
seeking monetary relief under 42 U.S.C. § 1983, the court (or jury) must at least award nominal
damages.” Pls.’ Supp. Mem. at 6, n. 4. As an initial matter, this argument is asserted solely in a
single sentence in a footnote to Plaintiffs’ Supplemental Memorandum, see id., and the case law
is clear that courts “need not consider cursory arguments made only in a footnote.” Hutchins v.
D.C., 188 F.3d 531, 539, n. 3 (D.C. Cir. 1999). Regardless, even if the Court were to consider
this argument, it would not alter the Court’s conclusion that Plaintiffs’ facial challenge is now
moot. Although it is true that “the denial of procedural due process [is] actionable for nominal
damages without proof of actual injury,” Carey, 435 U.S. at 266, the Court emphasizes once
again that Plaintiffs have not alleged nor do they now argue that enactment of the Act, without
more, constituted a violation of Plaintiffs’ constitutional due process rights. Accordingly, while
a plaintiff may be entitled to nominal damages for a violation of his procedural due process
17 rights, even absent proof of an injury, a plaintiff is not entitled to nominal damages, even absent
proof that his procedural due process rights were in fact violated.
Most importantly, Plaintiffs’ Amended Complaint does not include a request for nominal
damages — a point which Plaintiffs have not disputed. See Am. Compl. p. 30, ¶¶ 5 & 6 (seeking
only “[i]ndividual and class damages, jointly and severally against all defendants” and
“[p]unitive damages”). The D.C. Circuit has previously counseled that in such circumstances, it
is “inappropriate” to “strain[] to find inferences that are not available on the face of the
complaint” in order to permit an otherwise moot claim to go forward. Davis v. D.C., 158 F.3d
1342, 1349 (D.C. Cir. 1998) (affirming district court’s sua sponte dismissal of the plaintiff’s
complaint for damages despite the possibility that nominal damages could be awarded, because
the complaint requested only statutorily unavailable compensatory and punitive damages, and
lacked any specific request for nominal damages); see also Matthews v. D.C., 675 F. Supp. 2d
180, 188 (D.D.C. 2009) (“Although an alleged denial of procedural due process should be
actionable for nominal damages, the plaintiffs do not even request nominal damages in their
complaint.”) (internal quotation marks and citations omitted); cf. Arizonans for Official English
v. Arizona, 520 U.S. 43, 71 (1997) (“It should have been clear . . . that a claim for nominal
damages, extracted late in the day from [plaintiff]’s general prayer for relief and asserted solely
to avoid otherwise certain mootness, bore close inspection.”).3
3 Plaintiffs also briefly allude to an award of attorney’s fees in their supplemental briefing. See Pls.’ Supp. Mem. at 7 (briefly referring to “attorney’s fees” in a parenthetical citation). While the Individual Defendants have, in an abundance of caution, treated this fleeting reference as an affirmative argument by Plaintiffs that their request for attorney’s fees and costs saves their facial challenge from mootness, see Ind. Defs.’ Opp’n at 10-11, the Court does not understand Plaintiffs to have made any such argument. Rather, it is abundantly clear that Plaintiffs’ argument is based solely on their assertion that their facial challenge remains extant in
18 The Court therefore finds that Plaintiffs’ facial challenge to the Act has been rendered
moot by the enactment of the 2008 Amendment, which Plaintiffs themselves agree has rectified
any alleged due process violations in the Act. This finding, however, does not affect Plaintiffs’
as-applied challenge to the constitutionality of the Act. As indicated above, that claim remains
extant at this time. Accordingly, to the extent Plaintiffs can demonstrate that the prior Act, as
applied, resulted in a violation of their constitutional right to due process and that they were
injured as a result of that constitutional violation, Plaintiffs are arguably entitled to compensatory
damages. The Court’s conclusion that Plaintiffs’ facial challenge is moot therefore does not
eliminate Plaintiffs’ ability to pursue their damages claim in connection with their as-applied
challenge to the Act.
At first glance, then, it is unclear why Plaintiffs — having received the ultimate relief
sought in connection with their facial challenge, i.e., a new statute that provides pet owners with
due process — have not proceeded directly to litigate the merits of their as-applied challenge to
the Act. The reason for this, however, is apparent upon review of the Plaintiffs’ Supplemental
Motion. As set forth therein, Plaintiffs appear to be under the misguided belief that a holding by
this Court that the Act is unconstitutional as previously written would, in effect, serve as a
litigation “short-cut.” Plaintiffs urge that if this Court were to find that the Act as previously
written is facially unconstitutional, “then it [i.e., the Act] is unconstitutional as to all plaintiffs,
light of their request for compensatory damages. See id. at 5-7; cf. Am. Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008) (“A fleeting statement in the parenthetical of a citation is no more sufficient to raise a claim than a cursory remark in a footnote, which we have consistently rejected.”). Regardless, the Court notes that any such argument is foreclosed by D.C. Circuit precedent. See Liu v. Immigration Naturalization Servs., 274 F.3d 533, 536 (D.C. Cir. 2001) (rejecting claim that request for “attorney’s fees is sufficient to save the case from mootness”).
19 and the litigation in this case will be substantially shortened, and can then focus on the remaining
issues, such as damages.” Pls.’ Supp. Mem. at 7; see also id. at 2 (“In plaintiff’s [sic] view, a
determination that the prior Act is facially unconstitutional will resolve the central legal [issue] in
this case, and allow the parties to then properly address the remaining issues in the case,
including class certification, a discovery plan, and damages.”). In other words, Plaintiffs contend
that a finding in their favor as to the facial unconstitutionality of the Act would permit them to
proceed directly to the damages stage, thereby avoiding litigation of their as-applied claim.
Under this theory, Plaintiffs would be entitled to monetary damages for injuries caused by the
enforcement of the Act without being required to first prove the merits of their as-applied claim,
the litigation of which — unlike their facial challenge — would require the time and expense of
discovery. See id. at 7 (noting that resolution of a facial challenge to the constitutionality of a
statute does not typically require discovery). Such an argument is patently incorrect. To the
extent Plaintiffs seek compensatory damages for individual injuries allegedly sustained by
application of the Act, they must proceed with litigation of their as-applied challenges.
IV. CONCLUSION
For the reasons set forth above, the Court finds that Plaintiffs’ facial challenge to the
constitutionality of the Act is now MOOT. Accordingly, the Court shall DISMISS Count II of
the Amended Complaint insofar as it asserts a facial challenge to the constitutionality of the Act.
An appropriate Order accompanies this Memorandum Opinion.
Date: May 2, 2010.
/s/ COLLEEN KOLLAR-KOTELLY United States District Judge