                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 09a0099p.06

                 UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                X
                                                 -
 CHRISTOPHER J. PAGAN,
                                                 -
                                  Plaintiff-Appellee,
                                                 -
                                                 -
                                                      No. 08-3679
          v.
                                                 ,
                                                  >
                                                 -
                       Defendant-Appellant. -
 VILLAGE OF GLENDALE, OHIO,
                                                N
                  Appeal from the United States District Court
                 for the Southern District of Ohio at Cincinnati.
               No. 03-00541—Sandra S. Beckwith, District Judge.
                                   Submitted: March 12, 2009
                             Decided and Filed: March 16, 2009
                                                                                               *
      Before: MARTIN and GILMAN, Circuit Judges; ZOUHARY, District Judge.

                                      _________________

                                           COUNSEL
ON BRIEF: Lawrence E. Barbiere, SCHROEDER, MAUNDRELL, BARBIERE &
POWERS, Cincinnati, Ohio, for Appellant. Jeff Rowes, William H. Mellor III,
INSTITUTE FOR JUSTICE, Arlington, Virginia, Melynda W. Cook-Reich, REPPER,
PAGAN, COOK, Middletown, Ohio, for Appellee.
                                      _________________

                                            OPINION
                                      _________________

        BOYCE F. MARTIN, JR., Circuit Judge. In this appeal, the Village of Glendale,
Ohio challenges the district court’s entry of final judgment for Plaintiff Christopher
Pagan after we issued an en banc decision Pagan’s favor. Pagan v. Fruchey, 492 F.3d
766 (6th Cir. 2007), cert. denied, 128 S. Ct. 711 (2007) (“Pagan I”). The question in


        *
           The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio,
sitting by designation.


                                                  1
No. 08-3679        Pagan v. Village of Glendale, Ohio                               Page 2


this case is what “further proceedings” we instructed the district court to hold when we
reversed and remanded Pagan’s case for “further proceedings consistent with this
opinion” in Pagan I.     Id. at 779. Glendale contends that we meant for the case to
“proceed[] as if Glendale’s motion for summary judgment had never been filed,” and
that in refusing to allow Glendale to re-litigate the constitutionality of its statute, the
district court misinterpreted our mandate. But Glendale misreads Pagan I. We decided
the merits of Pagan’s claim in Pagan I in his favor and invalidated the ordinance he
challenged. Accordingly, we AFFIRM.

                                            I.

       In July 2003, Christopher Pagan, a resident of Glendale, Ohio, decided to sell his
1970 Mercury Cougar XR7, so he placed a “for sale” sign in its window and parked it
on Sharon Road. Shortly thereafter, Pagan received a notice from the Glendale police
that his car was in violation of Glendale Traffic Code § 76.06, which made it illegal to
park a car on the street “for the purpose of displaying it for sale.” To avoid a citation,
Pagan removed the sign. He then filed suit against Glendale and its Chief of Police Matt
Fruchey, alleging that the law was unconstitutional because it infringed upon his First
Amendment right to engage in commercial speech.

       After discovery, the parties agreed that no material facts remained in dispute and
filed cross-motions for summary judgment. The district court granted Glendale’s
motion. Pagan appealed and a panel of this Court affirmed, Pagan v. Fruchey, 453 F.3d
784 (6th Cir. 2006), but we subsequently granted Pagan’s petition for rehearing en banc.
In our en banc decision we held that the district court erred by failing to put the burden
on Glendale to establish the constitutionality of the law, and that under the correct
standard Glendale had failed to meet this burden. Pagan I, 492 F.3d at 778. We then
remanded the case for “further proceedings consistent with this opinion,” id. at 779, as
the parties had not litigated Pagan’s damages. On remand, Pagan declined to seek
compensatory damages, and instead asked only for nominal damages and a declaratory
judgment that the law was unconstitutional. Finding no material fact in dispute, the
No. 08-3679           Pagan v. Village of Glendale, Ohio                                         Page 3


district court entered final judgment for Pagan and awarded him $1 in nominal
damages.1 Glendale now appeals.

                                                   II.

         Glendale notes that the issue appealed in Pagan I was whether it was entitled to
summary judgment and points to this Court’s decision to “reverse and remand for further
proceedings consistent with this opinion” as evidence that our remand instructed the
district court to “proceed[] as if Glendale’s motion for summary judgment had never
been filed.”2 But this language simply incorporates the substance of our opinion, so
Glendale begs the question of what “further proceedings” our opinion required. See
Jones v. Lewis, 957 F.2d 260, 262 (6th Cir. 1992).

         In arguing that we did not decide the merits of Pagan’s claim, Glendale misreads
Pagan I: we did reach the merits of Pagan’s claim and we decided them in Pagan’s
favor, holding section 76.06 unconstitutional. After explaining that the district court
erred in failing to put the burden upon Glendale to establish the that the law “directly and
materially advances its regulatory interests,” Pagan I, 492 F.3d at 770-71, we applied
the correct test to Pagan’s case: “Upon review of the record, it is clear that the evidence
adduced by [Glendale] is insufficient to satisfy [its] burden.” Id. at 772. The only
evidence Glendale offered in support of its law was an affidavit by Police Chief Matt
Fruchey that “fail[ed] to address . . . how the particular restriction chosen by Glendale
directly and materially advance[d] [its] interests.” Id. at 773. Consequently, we held that
the “absence of any evidence of the need for regulation . . . is fatal to section 76.06,” id.


         1
           Nominal damages are a symbolic recognition of harm that may be awarded without proof of
actual harm and “have only declaratory effect.” Morrison v. Bd. of Educ., 521 F.3d 602, 610 (6th Cir.
2008). Because nominal damages follow from the fact of a constitutional violation, the district court had
authority to award them based upon our decision in Pagan I.
         2
           Glendale is correct that a simple reversal of summary judgment would not require the district
court to enter judgment for Pagan, but that is not what happened here. Glendale does not dispute that the
en banc Court had the authority to reach the merits of Pagan’s case, nor could it. See 28 U.S.C. § 2106;
Trs. of Mich. Laborers’ Healthcare Fund v. Gibbons, 209 F.3d 587, 594-95 (6th Cir. 2000) (holding that
courts of appeals have the authority under 28 U.S.C. § 2106 to order summary judgment based upon the
record where the appellant did not even move for summary judgment). And this is not a case where the
parties were not given a reasonable opportunity to litigate the issue decided by the district court or
subsequently on appeal. See, e.g., Fountain v. Filson, 336 U.S. 681, 682-83 (1949); see also Gibbons, 209
F.3d at 595.
No. 08-3679            Pagan v. Village of Glendale, Ohio                                         Page 4


(emphasis added), and declined to address the “narrow tailoring” prong of the test
because this lack of evidence was “dispositive in this case.” Id. at 778 (emphasis added).
We then ordered a remand. Id. at 779. In doing so, we made it clear that we were not
remanding the case for additional litigation or factfinding on the merits of the law. After
observing that Glendale “has been entirely unwilling” to “provide some evidence of the
need for regulation,” id. at 777 (emphasis in original), we explained: “We do not hold
Glendale’s ordinance invalid because Glendale has failed to produce sufficient evidence.
Rather, we simply cannot uphold the ordinance without any evidence at all to support
the need for its enactment and simultaneously follow what we view as a clear command
of the Supreme Court.” Id. at 777-78 (emphasis added). Our unequivocal language in
Pagan I removes all reasonable doubt as to our holding or the nature of the remand we
ordered: we struck down section 76.06, so a remand that permitted Glendale to re-litigate
the merits of Pagan’s constitutional claim (or that of some future challenger) simply
could not be “consistent” with our opinion.

         Glendale suggests that this result is somehow unfair, but it had ample opportunity
to defend its law in the district court at the summary judgment stage prior to the appeal
in Pagan I. Indeed, Glendale’s position throughout litigation was that there were no
material facts in dispute.3 Further, the legal standard we adopted in Pagan I was the
basis for Pagan’s motion for summary judgment, and our opinion adopted Pagan’s
argument that Fruchey’s affidavit was insufficient to show that the law “directly and
materially” advanced Glendale’s interests.4 Thus, Glendale was on notice to the
possibility that it would have to provide evidence to defend its law, and it had a full and
fair opportunity to do so. Instead, as Glendale admitted to the district court on remand,
it chose not to introduce additional evidence in support of its motion in opposition
because it “thought . . . that [it] had sufficient evidence . . . So from [its] view it wasn’t


         3
          The first time Glendale suggested there were material facts in dispute was on remand after our
en banc decision in Pagan I.
         4
          While perhaps controversial in its application, this standard was not new. See Edenfeld v. Fane,
507 U.S. 761, 770 (1993) (“It is well established that ‘the party seeking to uphold a restriction on
commercial speech carries the burden of justifying it.’”) (quoting Bolger v. Youngs Drug Prod. Corp., 463
U.S. 60, 71, n. 20 (1983)).
No. 08-3679        Pagan v. Village of Glendale, Ohio                           Page 5


necessary . . . to present or offer any additional evidence.” Glendale gambled that the
court would adopt its view of the case and lost. Accordingly, the district court was
correct to enter judgment in favor of Pagan.

                                         III.

       The judgment of the district court is AFFIRMED.
