           Case: 14-13399   Date Filed: 05/04/2015   Page: 1 of 10


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-13399
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 6:13-cv-00922-GKS-KRS



FREEDOM FROM RELIGION FOUNDATION, INC.,
DAN BARKER,
ANNIE LAURIE GAYLOR,
DAVID WILLIAMSON,

                                                          Plaintiffs-Appellants,

                                   versus

ORANGE COUNTY SCHOOL BOARD,

                                                           Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (May 4, 2015)

Before HULL, MARCUS, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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       Plaintiffs Freedom From Religion Foundation, Inc., Dan Barker, Annie

Laurie Gaylor, and David Williamson (collectively, “FFRF”) appeal the dismissal

of their constitutional claims against defendant Orange County School Board (the

“School Board”) regarding the distribution of literature at schools within the

School Board district. After careful review of the record and briefs, we conclude

that the district court properly dismissed the FFRF’s claims as moot and,

accordingly, affirm. 1

                                     I. BACKGROUND

A.     The Initial Review Process

       At the outset of this dispute, the defendant School Board allowed groups

outside the school to passively distribute materials at public schools in what both

parties agree amounted to a limited public forum. The School District would

approve the materials prior to any distribution.

       On January 16, 2013, the defendant School Board allowed World Changers

of Florida (“WCF”) to passively distribute copies of the New International Version

Bible (“NIV Bible”) to students at eleven of the public schools within the School

Board district. Plaintiff FFRF opposed this distribution, arguing to the School

Board that it should not allow WCF to distribute its materials. As an alternative,

plaintiff FFRF sought to distribute its own material, which included “atheist,

       1
         Separately, we find plaintiff FFRF’s allegations of abuse of discretion in the district
court’s discovery management to be without merit.
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humanist, and freethought literature.” The initial review and denial of some of that

material gave rise to this litigation.

       The defendant School Board informed plaintiff FFRF that it would have to

submit the materials planned for distribution in advance to ensure that such

materials were not among the material the School Board may prohibit. 2 On

January 29, 2013, plaintiff FFRF submitted materials for advance approval. These

materials included nine “nontracts,” five brochures, eight books, one essay, and

one sticker. The FFRF voluntary rescinded three of the books that it had submitted

for approval. Of the remaining materials, the School Board prohibited distribution

of four “nontracts,” the essay, four books, and the sticker. The School Board also

issued a distribution date of May 2, 2013.

       Plaintiff FFRF protested the defendant School Board’s prohibition of six

materials, alleging that the defendant had illegally discriminated against the

       2
          The School Board has no written policy regarding distribution of materials, but rather
follows the Collier County Consent Decree, entered by a district court in the Middle District of
Florida in World Changers of Fla., Inc. v. Dist. Sch. Bd. of Collier Cnty., Fla., No. 2:10–cv–419–
FtM–36SPC. There, the consent decree made plain that “no [school board] decisionmaker
c[ould] exercise discretion to deny access to the limited public forum on basis of viewpoint,” but
also granted the school board the authority to prohibit, in advance, certain materials for reasons
other than the viewpoints expressed. That consent decree allowed prohibition of literature that:
(i) promoted the use of alcohol, tobacco, or illegal drugs; (ii) advertised products or services for
sale; (iii) was not appropriate for the age and maturity of high school students; (iv) was
pornographic, obscene, or libelous; (v) violated intellectual property or privacy rights; (vi)
advocated or was likely to incite imminent lawless action; or (vii) was likely to cause substantial
disruption at the school despite the application of available discipline rules and procedures.
Neither party to this case is a party to the Collier County Consent Decree, but the School Board
maintains that the consent decree serves as a template for its evaluation of materials presented
for distribution in a limited public forum.

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viewpoints contained in those materials. The FFRF again requested that the

School Board close the forum to all outside groups. On May 2, 2013, the FFRF

passively distributed the approved materials to students at public schools within the

defendant’s district.

B.    The Complaint

      On June 13, 2013, plaintiff FFRF filed this action against the defendant

School Board, asserting that the School Board’s actions violated the First and

Fourteenth Amendments and were actionable under 42 U.S.C. § 1983.

Specifically, Count 1 of the complaint alleged viewpoint discrimination and prior

restraint in violation of the First Amendment. Count 2 alleged violation of the

Equal Protection Clause given the School Board’s relative treatment of materials

provided by WCF. The complaint, in its request for relief, sought nominal

damages, a declaratory judgment stating that the School Board violated the FFRF’s

constitutional rights, a declaratory judgment stating that the School Board cannot

prohibit the FFRF from distributing their materials while permitting distribution of

Bibles, and a permanent injunction ordering the School Board not to prohibit the

FFRF’s literature.

C.    The Offer to Distribute

      On or about January 3, 2014, the defendant School Board unconditionally

offered to allow plaintiff FFRF to distribute all the materials that the School Board


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had previously prohibited. The School Board made clear that the FFRF would

distribute materials at the same time and in the same manner as WCF. Although

the FFRF was authorized to participate in the passive distribution forum, which

occurred on January 16, 2014, the FFRF chose not to participate.

D.    The Motion to Dismiss

      On March 17, 2014, the defendant School Board filed a motion to dismiss

or, in the alternative, for summary judgment. The School Board argued that the

decision to allow all previously prohibited materials rendered the FFRF’s claims

moot. Further, the School Board represented that it “does not plan to, in the future,

change its position . . . .” The School Board attached an affidavit from John

Palmerini, the School Board’s associate general counsel. Palmerini averred that

the January 3 notification letter granted the FFRF permission to passively

distribute all of the previously prohibited materials and that the School Board “has

no intention in the future to prohibit these materials.”

      On March 31, 2014, plaintiff FFRF responded to the motion to dismiss. The

FFRF argued that the notification arrived too late for the FFRF to submit additional

materials for review and that, regardless, the School Board had not changed its

policy for review of submitted materials. The continuing prospect of review, in the

FFRF’s view, “chill[s]” its speech.

E.    The District Court’s First Order


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      On July 3, 2014, the district court granted the defendant School Board’s

motion to dismiss. The district court dismissed plaintiff FFRF’s claims for

prospective relief without prejudice on the grounds that the subsequent acceptance

by the School Board of the previously prohibited materials rendered the case moot.

Specifically, the district court held that the FFRF had “not rebutted the

presumption that [the School Board], as a government entity, will not reengage in

the purportedly unconstitutional conduct that, to date, it has voluntarily ceased.”

The district court found that the School Board “unambiguously expressed its

position that each of the materials Plaintiffs sought to distribute will be

unconditionally allowed.”

F.    The District Court’s Second Order

      On July 14, 2014, the district court sua sponte dismissed without prejudice

the remainder of plaintiff FFRF’s claims for relief. The district court held: the

defendant School Board “has unconditionally allowed [the FFRF] to distribute all

of the materials that they submitted to Defendant for prior approval.” Further, the

district court wrote: “[t]o the extent Plaintiffs’ claims are based on their concern

that any materials they might submit in the future might not be screened in a

constitutionally permissible manner, these claims are hypothetical and thus beyond

the Court’s limited subject matter jurisdiction.”

      The plaintiff FFRF timely appealed both of the district court orders.


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                          II. STANDARD OF REVIEW

      This Court reviews de novo a district court’s determination of whether it has

subject-matter jurisdiction. Gupta v. McGahey, 709 F.3d 1062, 1064-65 (11th Cir.

2013). Mootness is a question of law that we consider de novo. See United States

v. Logal, 106 F.3d 1547, 1551 (11th Cir. 1997).

                                 III. DISCUSSION

      Article III of the Constitution extends the jurisdiction of federal courts to

only “cases” and “controversies.” Lujan v. Defenders of Wildlife, 504 U.S. 555,

559, 112 S. Ct. 2130, 2136 (1992). The case-or-controversy restriction imposes

limits on justiciability. Strickland v. Alexander, 772 F.3d 876, 882-83 (11th Cir.

2014). One such limit is that we are without jurisdiction to decide moot questions.

United States v. Sec’y, Florida Dep’t of Corr., 778 F.3d 1223, 1226-27 (11th Cir.

2015). The Constitution “requires that there be a live case or controversy at the

time that a federal court decides the case; it is not enough that there may have been

a live case or controversy when the case was filed.” Tanner Adver. Grp., L.L.C. v.

Fayette Cnty., Ga., 451 F.3d 777, 785 (11th Cir. 2006) (en banc) (internal

quotation marks omitted). “The doctrine of mootness provides that the requisite

personal interest that must exist at the commencement of the litigation . . . must

continue throughout its existence . . . .” Id. (alterations and internal quotation

marks omitted).


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      A case may be rendered moot as a result of a change in circumstances or a

change in the law. Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320,

1327 (11th Cir. 2004). Voluntary cessation of allegedly illegal conduct does not

always make the case moot. Id. at 1328-29. “Because of the possibility that the

defendant could merely return to his old ways, the test for mootness in cases such

as this is a stringent one. . . . A case might become moot if subsequent events made

it absolutely clear that the allegedly wrongful behavior could not reasonably be

expected to recur.” Sec’y of Labor v. Burger King Corp., 955 F.2d 681, 684 (11th

Cir. 1992) (internal quotation marks omitted and alteration adopted).

      Governmental actors, however, “have been given considerably more leeway

than private parties in the presumption that they are unlikely to resume illegal

activities.” Coral Springs St. Sys., 371 F.3d at 1328–29. “[W]hen the defendant is

not a private citizen but a government actor, there is a rebuttable presumption that

the objectionable behavior will not recur.” Troiano v. Supervisor of Elections in

Palm Beach Cnty., Fla., 382 F.3d 1276, 1283 (11th Cir. 2004). “When government

laws or policies have been challenged, the Supreme Court has held almost

uniformly that cessation of the challenged behavior moots the suit.” Id. “The

[Supreme] Court has rejected an assertion of mootness” in a voluntary cessation

case “only when there is a substantial likelihood that the offending policy will be

reinstated if the suit is terminated.” Id. at 1283–84.


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       In this case, the defendant School Board has unambiguously expressed its

position that each of the materials plaintiff FFRF sought to distribute will be

unconditionally allowed. Simply put, there is not a substantial likelihood that the

defendant School Board will resume its allegedly wrongful behavior, the

prohibition of the materials that FFRF sought to passively distribute. Further, the

plaintiff FFRF was provided an opportunity to distribute all of the materials for

which it had sought prior approval at the distribution event that occurred on

January 16, 2014. The fact that the FFRF chose not to participate in the January

14, 2014 event does not render the controversy live.3

       In addition, plaintiff FFRF’s claims about potential future prohibition are too

speculative. Of course, as the district court properly noted, if the School Board

were to again prohibit the distribution of materials for the reasons alleged in the

complaint, the FFRF would be free to reinstate its suit. As we made clear in Jews

for Jesus, Inc. v. Hillsborough County Aviation Authority:

              If [a defendant] cho[oses] to reinstate [its] restrictive
              policies—or adopt similar ones—the courthouse door is
              open to [plaintiff] to reinstate its lawsuit. Under such
              circumstances, the case would not be moot even if the
              [defendant] again revoked its policies in response to the
              lawsuit, because such “flip-flopping” would create a


       3
         Nor does the FFRF’s claim for nominal damages. See DA Mortg., Inc. v. City of Miami
Beach, 486 F.3d 1254, 1259 (11th Cir. 2007) (“Damage claims can save a § 1983 claim from
mootness, but only where such claims allege compensatory damages or nominal damages for
violations of procedural due process.” (footnote omitted)).

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               reasonable expectation that [defendant] would reinstate
               the challenged practice at the close of the lawsuit.

162 F.3d 627, 630 (11th Cir. 1998).

                                     IV. CONCLUSION

       For the foregoing reasons, the district court properly dismissed the FFRF’s

claims as moot.4

       AFFIRMED.




       4
        After the district court’s ruling, and while this appeal was pending, plaintiff FFRF filed a
motion to supplement the record, which defendant School Board opposed. After review, we
deny the motion to supplement the record.
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