                          File Name: 06a0444n.06
                            Filed: June 27, 2006
               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                          Nos: 05-3842

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT



YOUNGSTOWN PUBLISHING CO., ET AL.,
     Plaintiffs - Appellants                        On Appeal From the United States District
                                                    Court for the Northern District of Ohio


               v.


GEORGE MCKELVEY, ET AL,
     Defendant - Appellee

______________________________/


       BEFORE: KENNEDY, COLE, and MCKEAGUE, Circuit Judges.

       KENNEDY, Circuit Judge.

       Plaintiffs, Youngstown Publishing, three of its reporters and editor, brought this action

seeking a preliminary and permanent injunction against Defendant former Mayor George M.

McKelvey in his official capacity, and the city he lead, Youngstown, Ohio, alleging they were

retaliated against for exercising First Amendment rights. Plaintiffs contend that in response to

publishing articles criticizing Mayor McKelvey in the Business Journal, Mayor McKelvey issued

an edict prohibiting members of his administration from communicating with the Business Journal.

Both parties filed motions for summary judgment. The district court granted the Defendant’s motion
and denied the Plaintiffs’; finding Plaintiffs failed to establish that Defendants retaliated against

them for exercising their First Amendment right to criticize his administration.

       On appeal, Plaintiffs contend that the district court erred in its analysis of their retaliation

claim and also argue that the edict is facially unconstitutional. After the filing of this appeal, a new

mayor, Jay Williams, took office and eventually withdrew Mayor McKelvey’s edict. For the

following reasons, we conclude that this case is now moot. Thus, the district court’s opinion is

VACATED, the appeal DISMISSED, and the case REMANDED to the district court with

instructions to dismiss the case as moot.


                                          BACKGROUND

       The Business Journal is a bimonthly newspaper of general circulation that regularly

publishes articles covering the Youngstown city government. George M. McKelvey was the mayor

for the city of Youngstown Ohio until his term ended at the end of the 2005 calendar year. The

Business Journal has published numerous articles about Mayor McKelvey and his official actions.



       Beginning in February 2003, the Business Journal began publishing news articles criticizing

Mayor McKelvey’s agreement to purchase land for a proposed convocation center at a price

allegedly higher than its value. In February of 2003, following the Business Journal’s first article

criticizing Mayor McKelvey, he issued an oral directive to various city officials instructing them not

to speak to reporters from the Business Journal. Shortly after issuing this directive, Mayor

McKelvey sent a fax to the Business Journal demanding an apology for its reporting on the land deal

and accusing them of “low standards of journalistic integrity”. J.A. 153-54. In response, the




                                                   2
Business Journal published an article detailing the Mayor’s demand for an apology but standing by

all the factual allegations in the article at issue.

        The Business Journal became aware of the oral directive in March or April of 2003 after

repeatedly being denied information from city officials. As a result of this lack of information from

city officials, the newspaper filed a series of public records requests to obtain information on the

convocation center project. After the city failed to produce all the records, the Business Journal

initiated mandamus proceedings to compel the city to release the records. The mandamus

proceedings resulted in an order on December 22, 2004, and the city complied with the records

requests.

        In January 2004, the Business Journal published another article on the proposed land

acquisition of the convocation center. The newspaper reported that it was likely it would not go

through due to misguided business judgment. In this article, the Business Journal also reported on

their legal struggle with the city to obtain public documents.

        Two years after the Mayor issued his oral directive, and two months after the Magistrate

entered an order in the mandamus action, on February 4, 2005, the Mayor sent out a letter, or rather,

an edict, to the journal’s editor. The edict states:

        The following statements accurately reflect my policy and philosophy regarding the
        separate issues of Public Records and Speaking to the Press. Any representation to
        the contrary should be considered a reckless disregard of the truth or falsity of the
        statement; irresponsible; a distortion of my comments; and being made with “actual
        malice.”
                                             Public Records


        As Mayor of the City of Youngstown I have always recognized that Ohio’s Public
        Records Act requires the City of Youngstown to make available all public records
        to any person, unless the record falls within one of the statute's enumerated
        exceptions. As Mayor of the City of Youngstown (since January 1, 1998) I have

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       always expected 100% compliance with Ohio's Public Records Act. I have always
       required my employees to adhere to my policy and philosophy that public records
       are the people's records. The aforementioned policy and philosophy shall
       continue throughout my tenure as Mayor of Youngstown.
                                       Speaking to the Press
       As Mayor of Youngstown, I do not dispute that I have instructed members of my
       administration not to make statements to the Business Journal except to fulfill the
       City's obligations regarding public records requests...I have made the
       determination that City administrators and employees may not comment to The
       Plaintiffs on behalf of the City.

Since instituting this no-comment policy, City employees contacted by the Business Journal

have refused to speak with its reporters.

       On February 24, 2005, the Business Journal, Youngstown Publishing Company, Andrea

Wood, W. Daniel O’Brien, George Nelson and Dennis LaRue (“Plaintiffs” or “The Business

Journal”) brought this action against Mayor McKelvey and the city he leads, Youngstown, Ohio

(“City” or “Defendants”) requesting a preliminary and permanent injunction preventing the Mayor

from implementing his policy. The complaint also requested attorney’s fees and costs, and “such

other relief that the Court deems necessary and appropriate.” J.A. at 8. On March 18, 2005, the City

filed its opposition to the motion for the preliminary injunction and moved under Federal Rule of

Civil Procedure 12(b)(6) to dismiss the complaint for failure to state a claim. Finding no first

amendment rights at issue, the district court granted the City’s motion to dismiss and denied the

Plaintiffs’ motion for a preliminary injunction. Plaintiffs filed this timely appeal.

       On January 1, 2006, a new mayor, Jay Williams, took office. At oral argument counsel for

Defendants admitted that approximately two weeks prior to oral argument, Mayor Williams formally

rescinded Mayor McKelvey’s edict and that the Business Journal received a copy of a memorandum

to city personnel stating that former Mayor McKelvey’s personal policy not to speak with the

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Business Journal no longer exists. In view of this development the court requested briefs on

whether the controversy was moot.

                                             I. Mootness

       Under the “case or controversy” requirement in Article III of the United States Constitution,

federal courts only have jurisdiction to decide cases that affect the rights of litigants. Southwest

Williamson County Cmty. Assoc. v. Slater, 243 F.3d 270, 276 (6th Cir. 2001). Thus, as a preliminary

matter we must first determine whether this case is moot as Mayor McKelvey’s edict no longer

exists. The Supreme Court has held that when considering the potential mootness of a claim for

declaratory relief, “the question is ‘whether the facts alleged, under all the circumstances, show that

there is a substantial controversy, between parties having adverse legal interests, of sufficient

immediacy and reality to warrant the issuance of a declaratory judgment.’” Super Tire Eng’g Co.

v. McCorkle, 416 U.S. 115, 122, 94 S.Ct. 1694 (1974) (quoting Maryland Cas. Co. v. Pacific Coal

& Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510 (1941)). “[I]f 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, the appeal must be dismissed.” Church of Scientology of California v. United States, 506 U.S.

9, 12 (1992) (quotation omitted). “The mootness inquiry must be made at every stage of a case;

thus, if a case becomes moot during an appeal, the judgment below must be vacated and the case

remanded with instructions to dismiss.” McPherson v. Mich. High School Athletic Ass’n, Inc., 119

F.3d 453, 458 (6th Cir.1997) (en banc).

       Plaintiffs argue that this case is not moot under both the voluntary cessation doctrine and the

capable of repetition yet evading review exception to mootness. Additionally, Plaintiffs also

contend that they stated a claim for damages in their Complaint and that that claim survives even


                                                  5
if a claim for injunctive relief does not. We address each of Plaintiffs’ arguments in turn and, for

the following reasons, we find the case is moot.

                                       A. Voluntary Cessation

        “[A] defendant's voluntary cessation of a challenged practice does not deprive a federal court

of its power to determine the legality of the practice.” City of Mesquite v. Aladdin's Castle, Inc., 455

U.S. 283, 289, 102 S.Ct. 1070 (1982). Yet, while “voluntary cessation of wrongful conduct does

not automatically render a case moot, the case may nevertheless be moot if the defendant can

demonstrate that there is no reasonable expectation that the wrong will be repeated.” Mosley v.

Hairston, 920 F.2d 409, 415 (6th Cir.1990) (citation and quotation marks omitted).

        The party asserting mootness bears a “heavy burden of persuading the court that the

challenged conduct cannot reasonably be expected to stand up again.” U.S. v. Dairy Farmers of

America, Inc., 426 F.3d 850, 857 (6th Cir. 2005) (citation and quotation marks omitted). The

reasoning behind this “heavy burden” is simple: courts want to “protect a party from an opponent

who seeks to defeat judicial review by temporarily altering its behavior.” U.S. v. City of Detroit, 401

F.3d 448, 451 n. 1 (6th Cir. 2005) (citing City News & Novelty, Inc. v. City of Waukesha, 531 U.S.

278, 284 n. 1 (2001)). Otherwise, “the courts would be compelled to leave ‘[t]he defendant...free

to return to his old ways.’” Friends of the Earth, Inc. v. Laidlaw Envtl. Serv. (TOC), Inc., 528 U.S.

167, 189 (2000) (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 n. 10, 102

S.Ct. 1070 (1982)).

       In this case, there is simply no indication that the new mayor of Youngstown, Mayor

Williams, will return to the “old ways” of Mayor McKelvey and issue a similar edict. At oral

argument, Plaintiffs’ counsel stated that Mayor McKelvey’s edict no longer exists and that the

                                                   6
Business Journal had not, up to that point, had any problems with the new mayor of Youngstown

nor his administration. Had Mayor McKelvey - rather than Mayor Williams - revoked the edict

during this litigation, then we would be more inclined to find that such an act was done to defeat

judicial review. Yet we find the edict was revoked not to defeat litigation, but simply due to a

change in circumstances.

       Notably, the edict was removed by a government official, Mayor Williams, rather than a

private party. We have previously pointed out that:

       [T]here appears to be a difference in the way voluntary cessation of illegal activities
       is treated when the offending parties are government officials rather than private
       parties:
       We note additionally that cessation of the allegedly illegal conduct by government
       officials has been treated with more solicitude by the courts than similar action by
       private parties. According to one commentator, such self-correction provides a
       secure foundation for a dismissal based on mootness so long as it appears genuine.


Mosley, 920 F.2d at 415 (citing 13A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,

Federal Practice and Procedure § 3533.7 (2d ed)). Especially given the circumstances surrounding

the revocation in this case, we have no reason to doubt the genuineness of Mayor William’s

revocation of Mayor McKelvey’s edict.

       Finally, with respect to Plaintiffs’ retaliation claim, arguably the only claim we have

jurisdiction to hear,1 we find that it is even more unlikely that this situation will recur. In their


       1
         In addition to their retaliation claim, Plaintiffs also raise a facial challenge to the edict.
However, this challenge was not raised by Plaintiffs in their initial complaint, nor addressed by the
district court; it was only mentioned in their Motion for A Preliminary Injunction and their
Memorandum in Support of their opposition to Defendants’ Motion to Dismiss. We note courts are
generally hesitant to entertain an argument ignored by the district court that was mentioned only in
a party’s brief, and not plead in the complaint. See McClintock v. Eichelberger, 169 F.3d 812 (3d
Cir. 1999) (where appellants briefed an argument at the district court level but did not plead it, the

                                                  7
retaliation claim, Plaintiffs argue that the Mayor unlawfully retaliated against them for exercising

their right under the First Amendment to publish articles criticizing the Mayor. Thus, for the

allegedly illegal conduct to recur, the Business Journal would first have to publish articles criticizing

Mayor Williams and Mayor Williams would then, in retaliation, have to issue a similar edict. There

is no evidence that the Business Journal has even published an article criticizing Mayor Williams,

let alone evidence that Mayor Williams is planning on re-issuing Mayor McKelvey’s edict in

retaliation.

        Thus, we conclude that the City has carried its burden in this case in showing there is no

reasonable likelihood “that the wrong will be repeated.” United States v. W.T. Grant Co., 345 U.S.

629, 633 (1953).

                            B. Capable of Repetition Yet Evading Review

        Plaintiffs also argue that the challenged conduct is capable of repetition yet evading review.

This exception to the mootness doctrine applies where: (1) the challenged action is in its duration

too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable

expectation that the same complaining party will be subject to the same action again. Rosales-

Garcia v. Holland, 322 F.3d 386 (6th Cir. 2003); Weinstein v. Bradford, 96 S.Ct. 347, 349 (1975).




court refused to consider the argument); Meade v. Pension Appeals and Review Comm., 966 F.2d
190 (6th Cir. 1994) (noting that where the district court does not address an argument, we need not
address it on appeal). Yet, as we find that all the Plaintiffs’ claims are moot, we need not decide
whether the Plaintiffs’ sufficiently raised this facial challenge in the court below.



                                                   8
       We need not address whether Plaintiffs’ challenged action satisfies the first requirement, as

we find it fails to meet the second. Obviously, the analysis regarding whether a challenged act is

“capable of repetition,” Rosales-Garcia, 322 F.3d at 386, overlaps with the above discussion

regarding whether Plaintiffs have “no reasonable expectation that the wrong will be repeated,”

Mosley, 920 F.2d at 415. Again, as discussed, there is no indication that Mayor Williams will re-

issue Mayor McKelvey’s edict. Plaintiffs cannot point to any evidence suggesting that Mayor

Williams is even considering such a ban. Plaintiffs argue that they are now in a “tenuous position”

requiring them to weigh their right to criticize the City with the alleged threat of another

exclusionary edict. Yet, while we sympathize with Plaintiffs’ position, we find that Plaintiffs have

failed to explain why they fear a similar edict will be issued. Plaintiffs simply claim that because

the City has maintained throughout this litigation that the challenged act was lawful and because the

Business Journal continues to scrutinize public actions, it is likely that another edict will be issued.

Such bare allegations fail to establish a “reasonable expectation that the same complaining party will

be subject to the same action again.” Rosales-Garcias, 322 F.3d at 386.

         Thus, for these reasons and those discussed in I.A., we find that Plaintiffs have not

established that the challenged conduct meets the requirements of the capable of repetition, yet

evading review exception to mootness.

                                       C. Monetary Damages

       Finally, Plaintiffs contend that in addition to stating a claim for injunctive relief, they also

stated a claim for damages. While a claim for injunctive relief may be mooted, a viable claim for

past infringement of a constitutionally protected right survives. Blau v. Fort Thomas Pub. Sch. Dist.,

401 F.3d 381, 387 (6th Cir.2005). Plaintiffs maintain that because they stated a valid §1983 claim,


                                                   9
because damages may be awarded pursuant to that claim, and because they requested “such other

relief that the Court deems necessary and appropriate” that they requested damages. J.A. at 8.

       When asserted to avoid mootness, courts are reluctant to find that a party stated a claim for

damages. Courts will not “conjure up a damages claim where none exists.” Seven Words LLC v.

Network Solutions, 260 F.3d 1089, 1097 (9th Cir. 2001); Harris v. City of Houston, 151 F.3d 186,

191 (5th Cir.1998) (where “as a tactical matter, the appellants limited...their pleading and arguments

solely [to injunctive relief],” the court held the case was moot as they would “not second-guess their

original trial strategy, nor conjure up relief independent of the record.”).

       This is especially true when that party failed to assert a damages claim in the court below.

Donkers v. Simon, 2006 WL 901874, 3 (6th Cir. 2006) (where a complaint sought only declaratory

and injunctive relief, court found it “could not invent requests for damages that the plaintiff did not

make, particularly at this point in the litigation,” to avoid mootness); James Luterbach Const. Co.,

Inc. v. Adamkus, 781 F.2d 599, 602 (7th Cir. 1986) (“In an attempt to avoid mootness, Luterbach asks

for damages for the first time on appeal. We will not consider Luterbach’s prayer for damages

because it was not brought before the district court”); Boucher v. Syracuse University, 164 F.3d

113, 118 (2d Cir. 1999) (quoting McCabe v. Nassau County Med. Ctr., 453 F.2d 698, 702 (2d

Cir.1971) (“A request for damages, however, will not avoid mootness if it was ‘inserted after the

complaint was filed in an attempt to breathe life into a moribund dispute.’”).

       As indicated by the Supreme Court, a claim for damages, “extracted late in the day from [a]

general prayer for relief and asserted solely to avoid otherwise certain mootness, [bears] close

inspection.” Arizonans for Official English v. Ariz., 520 U.S. 43, 71, 117 S.Ct. 1055, 1070-1071

(1997). In Fox v. Bd. of Trs. of State Univ. of N. Y., the plaintiffs similarly argued that they stated


                                                  10
a claim for damages in their Complaint by requesting, “such other relief as the Court deems just and

proper,” and thus the case was not moot. 42 F.3d 135, 141-42 (2d Cir.1994), cert. denied, 515 U.S.

1169, 115 S.Ct. 2634 (1995). The court found the plaintiffs contention failed “primarily because

there is absolutely no specific mention in the Complaint of nominal damages.” 42 F.3d 135, 141-42

(citation, quotation and alteration marks omitted). The court further explained, “[w]e are especially

reluctant in these circumstances to read a damages claim into the Complaint’s boilerplate.” Id. at

142.

       Upon “close inspection” we find that Plaintiffs claim for damages was raised for the first

time on appeal, that there is no specific mention in the complaint for damages, and that Plaintiffs

raised this claim to avoid mootness. Arizonans, 520 U.S. at 71. Under such circumstances, we too

are “especially reluctant” to read in a general prayer for relief a specific claim for damages. Thus,

as Plaintiffs have not provided this court with any reason to overcome such reluctance in this case,

we find that Plaintiffs’ “late in the day” plea for damages “cannot genuinely revive the case.” Id.

at 1071.

                                         CONCLUSION

       For the foregoing reasons, we DISMISS the appeal as moot and we VACATE the district

court’s opinion. We REMAND this case to the district court with instructions that the case be

dismissed as moot.




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       R. GUY COLE, JR., concurring. I agree with much of the majority’s thoughtful opinion

and write separately only to stress that this is a unique case, unlikely to recur. Any one of a number

of small deviations from the facts before us would, in my opinion, necessitate that this Court reach

the merits of plaintiff’s claim under the voluntary cessation exception to mootness.

       As the Supreme Court and the majority noted, “[i]t is well-settled that a defendant’s

voluntary cessation of a challenged practice does not deprive a federal court of its power to

determine the legality of the practice.” City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289

(1982). At issue in City of Mesquite were two sections of a municipal licensing ordinance governing

coin-operated arcades. Id. at 284-85. Prior to oral argument, Mesquite revised the ordinance to

eliminate the offensive statutory language. Because “[t]here [was] no certainty that a similar course

would not be pursued if [Mesquite’s] most recent amendment were effective to defeat federal

jurisdiction,” the Court declined to find the matter moot. Id.

       “In accordance with this principle, the standard [the Supreme Court] has announced for

determining whether a case has been mooted by the defendant’s voluntary conduct is stringent: A

case might become moot if subsequent events made it absolutely clear that the allegedly wrongful

behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl.

Serv., Inc., 528 U.S. 167, 189 (2002) (internal citations and quotations omitted); see also United

States v. Farmers of Am., Inc., 426 F.3d 850, 857 (6th Cir. 2005) (referring to the “heavy burden of

persuasion” faced by a defendant asserting mootness based on voluntary cessation (quoting United

States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968))).

       As the majority noted, were Mayor McKelvey, rather than his successor, Mayor Williams,

to have revoked the no-comment policy, our analysis would be different. Mayor Williams’ only


                                                 12
relationship with the no-comment policy has been one of apparent opposition. Not only did he

officially revoke the policy, he did so in writing, and even sent a copy to The Business Journal. One

questions whether Mayor Williams voluntarily terminated the policy at all, or whether he merely

indicated the obvious: that, with Mayor McKelvey out of office, the policy was defunct.

       That said, I would place decidedly less stock in the commentary, cited by this Court in

Mosley v. Hairston, 920 F.2d 409, 415 (6th Cir. 1990), and again by today’s majority, to the effect

that apparently genuine self-correction by a government official, without more, provides a secure

foundation for a dismissal based on mootness. Id. at 415 (citing Wright, Miller & Cooper, 13A Fed.

Prac. & Proc. § 3533.7 (2d ed)). This rule, if over-extended, could create an exception within an

exception, shifting as though weightless the allegedly heavy burden back to the plaintiff to show

disingenuousness. Such a shift is unwarranted: after all, official conduct was involved in City of

Mesquite itself, an early, seminal, and heavily-cited voluntary cessation case. 455 U.S. at 289 (“In

this case the city’s repeal of the objectionable language would not preclude it from reenacting

precisely the same provision if the District Court’s judgment were vacated.”).

       Indeed, where the Supreme Court has declined to reach an issue as moot on the basis of

official representation alone, it has specifically distinguished the context of voluntary cessation:

       There is a line of decisions in this Court standing for the proposition that the

       voluntary cessation of allegedly illegal conduct does not deprive the tribunal of

       power to hear and determine the case, i.e., does not make the case moot. These

       decisions and the doctrine they reflect would be quite relevant if the question of

       mootness here had arisen by reason of a unilateral change in the admissions

       procedures of the Law School.


                                                 13
DeFunis v. Odegaard, 416 U.S. 312, 318 (1974) (internal citation omitted); see also Preiser v.

Newkirk, 422 U.S. 395, 402 (1975) (“We have before us more than a mere voluntary cessation of

allegedly illegal conduct.”) (internal quotation omitted).

       I note also that were Mayor McKelvey’s edict to reach the citizens of Youngstown, rather

than just its employees, or were his no-comment policy broader than a personal reaction to criticism,

then Mayor McKelvey’s conduct might be imputed to the City itself. Pembaur v. City of Cincinnati,

475 U.S. 469, 480 (1986) (“[O]fficials whose acts or edicts may fairly be said to represent official

policy, . . . may give rise to municipal liability under § 1983. Indeed, any other conclusion would

be inconsistent with the principles underlying § 1983.”) (internal quotation omitted). In contrast to

the new mayor, the City has, according to its representations before this Court, steadfastly asserted

the propriety and legality of the no-comment policy as a reaction to negative press. Thus, the City

would not, in my view, overcome its burden to make “it absolutely clear that the allegedly wrongful

behavior could not reasonably be expected to recur.” Friends of the Earth, 528 U.S. at 189.

       With these qualifications in mind, I concur in the majority opinion.




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