     11-5199-cv
     Children First Foundation, Inc. v. Fiala

 1                                    UNITED STATES COURT OF APPEALS
 2                                        FOR THE SECOND CIRCUIT
 3
 4                                                   SUMMARY ORDER
 5
 6   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 7   SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
 8   BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
 9   WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
10   MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
11   NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
12   OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
13
14
15           At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
16   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
17   5th day of August, two thousand fifteen.
18
19   Present:    ROSEMARY S. POOLER,
20               PETER W. HALL,
21               DEBRA ANN LIVINGSTON,
22                           Circuit Judges.
23   _____________________________________________________
24
25   CHILDREN FIRST FOUNDATION, INC.,
26
27                                                       Plaintiff-Appellee,
28
29                                              v.                       11-5199-cv
30
31   BARBARA J. FIALA, in her official capacity as Commissioner
32   of the New York State Department of Motor Vehicles,
33
34                                       Defendant-Appellant.
35   _____________________________________________________
36
37   Appearing for Appellant:             Zainab A. Chaudry, Assistant Solicitor General (Barbara D.
38                                        Underwood, Solicitor General, Andrea Oser, Assistant Solicitor
39                                        General, on the brief) for Eric T. Schneiderman, Attorney General
40                                        of the State of New York, Albany, NY.
41
42
43   Appearing for Appellee:              Jeremy D. Tedesco (Jeffrey A. Shafer, David A. Cortman, James
44                                        P. Trainor, Kevin Theriot, on the brief), Alliance Defense Fund,
45                                        Scottsdale, AZ.
 1   Appeal from the United States District Court for the Northern District of New York (McCurn,
 2   J.).
 3
 4        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 5   AND DECREED that the judgment of said District Court be and it hereby is VACATED and
 6   REMANDED.
 7
 8           Children First Foundation Inc. (“CFF”) filed a petition for rehearing from our opinion in
 9   Children First Found., Inc. v. Fiala, —F.3d—, 2015 WL 2444501 (2d Cir. May 22, 2015). We
10   stayed our mandate pending the Supreme Court’s issuance of its opinion in Walker v. Texas Div.,
11   Sons of Confederate Veterans, Inc., —U.S.—, 135 S. Ct. 2239 (2015). Both parties submitted
12   briefing on the impact of Walker.
13
14           Having considered Walker and the subsequent briefing, we now GRANT the petition for
15   rehearing, and withdraw that portion of the opinion filed May 22, 2015 holding the custom
16   license plate program (1) was facially valid and (2) did not violate CFF’s First Amendment
17   rights in rejecting CFF’s proposed custom plate design.
18
19          We further VACATE the judgment of the district court and REMAND for further
20   proceedings consistent with the opinion of the Supreme Court. So that the case may be heard as
21   expeditiously as possible, we direct that should the district court deem further discovery
22   necessary, said discovery be limited to the issues raised by Walker.
23
24           From whatever final decision the district court makes, the jurisdiction of this Court to
25   consider a subsequent appeal may be invoked by any party by notification to the Clerk of this
26   Court within ten days of the district court’s decision, in which event the renewed appeal will be
27   assigned to this panel. See United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994). Each side to
28   bear its own costs.
29
30
31                                                        FOR THE COURT:
32                                                        Catherine O’Hagan Wolfe, Clerk
33




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