                                                                           FILED
                           NOT FOR PUBLICATION                             APR 16 2014

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JAMES LINLOR,                                    No. 12-15061

              Plaintiff - Appellant,             D.C. No. 3:11-cv-00508-LRH-
                                                 WGC
  v.

NEVADA DEPARTMENT OF MOTOR                       MEMORANDUM*
VEHICLES,

              Defendant,

  And

BRUCE H. BRESLOW,

              Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                     Argued and Submitted February 12, 2014
                            San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before:      CONSUELO M. CALLAHAN and MILAN D. SMITH, JR. Circuit
             Judges, and EDWARD R. KORMAN, Senior District Judge.**

       Appellant James Linlor (“Linlor”) appeals the dismissal of his suit against

Bruce H. Breslow (“Breslow”), the former director of the Nevada Department of

Motor Vehicles (“DMV”), which was filed as a result of the DMV’s denial of Linlor’s

applications for personalized license plates. In 2009 and 2010, the DMV denied

Linlor’s applications, on behalf of his wholly owned and controlled corporation,

Paperless, Inc., for personalized prestige license plates bearing the phrases

“GOPALIN,” “PALIN,” “PALIN12,” and “PALIN 16.” The DMV based its decision

on sections 482.320(6)(b)(5) and 482.320(6)(f) of the Nevada Administrative Code

(“NAC”), which provided, respectively, that “[n]o combination of letters, numbers or

spaces is allowed if it . . . [e]xpresses contempt, ridicule or superiority of . . . political

affiliation,” or “[i]s determined by the Department to be inappropriate.”

       An Administrative Law Judge (“ALJ”) reversed the denial of the application

for the “PALIN,” “PALIN12,” and “PALIN 16” license plates on September 9, 2010,

after which the DMV issued those license plates to Linlor. A “GOPALIN” license

plate was ultimately issued to Linlor’s colleague, who also applied for it on behalf of

Paperless, Inc. Subsequently, on October 6, 2011, Breslow, then the DMV director,

        **
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.

                                              2
issued a memorandum advising the DMV not to “deny any new personalized license

plate requests” based on the provisions of the Nevada Administrative Code that were

relied upon to deny Linlor’s initial applications.

      More significantly, the memorandum indicated that the DMV had initiated

formal procedures to repeal those provisions. The repeal process entailed, among

other procedures, providing notice to the public so that it has an opportunity to

comment on proposed amendments, issuing an informational statement describing

comments received and responses, see Nev. Rev. Stat. § 233B.066, and issuing a

summary of the reasons for adopting a regulation without change, if none were made

following the comment period. Similar procedures would be required to reinstate the

regulations. While this appeal was pending, the amended regulations became final on

February 15, 2012, formally repealing sections 482.320(6)(b)(5) and 482.320(6)(f).



      We hold that the challenges to the repealed regulations are moot. The repeal

of NAC sections 482.320(6)(b)(5) and 482.320(6)(f) reflects a permanent change in

the DMV’s personalized license plate regulations, so that the challenged conduct

“cannot reasonably be expected” to recur. See White v. Lee, 227 F.3d 1214, 1243– 44

(9th Cir. 2000). Indeed, the formal manner in which the repeal of the regulations was

effected, and the comparable steps that would have to be taken before they could be


                                           3
reinstated, combined with the years that have passed since the DMV last enforced

those regulations against Linlor or anyone else, as well as the earlier ALJ’s ruling,

provide sufficient assurance that the “new policy [was] the kind of permanent change

that proves voluntary cessation” sufficient to moot Linlor’s claims for relief with

respect to the regulations. Bell v. City of Boise, 709 F.3d 890, 901 (9th Cir. 2013).

      Perhaps recognizing the lack of merit in his challenge to the repealed

regulations, Linlor argues that the case is not moot because a Nevada statute, Nev.

Rev. Stat. § 482.3667(5), “independently authorizes the DMV to prohibit the

combination of letters deemed ‘inappropriate.’” While Linlor’s claim based on

section 482.3667(5) is not moot given that this statute has not been repealed, this

claim fails on the merits. Linlor’s interpretation is inconsistent with a plain reading

of that statute, which provides that the DMV “may limit by regulation the number of

letters and numbers used and prohibit the use of inappropriate letters or combinations

of letters and numbers.” Nev. Rev. Stat. § 482.3667(5). It does not authorize the

DMV to act without going through the formal process of promulgating regulations

prohibiting certain letters and combinations of letters and numbers. Indeed, while the

regulations at issue here were in effect, the DMV did not interpret NRS section

482.3667(5) to authorize it to deny license plate applications as inappropriate. Rather,

the DMV relied on its regulations, promulgated pursuant to NRS section 482.3667(5),


                                           4
to deny license plate applications, like Linlor’s. The DMV maintains its position that

the statute is “simply a grant of rule-making authority to the DMV by the Nevada

State Legislature,” and Nevada courts “give deference to administrative

interpretations.” Thomas v. City of N. Las Vegas, 127 P.3d 1057, 1070 (Nev. 2006)

(citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844

(1984)).

      AFFIRMED.




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