     Case: 13-40806   Document: 00512706488     Page: 1   Date Filed: 07/22/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                                       Fifth Circuit

                                                                      FILED
                                 No. 13-40806
                                                                    July 22, 2014
                                                                    Lyle W. Cayce
                                                                         Clerk
AURELIO DUARTE; WYNJEAN DUARTE; S. D., A Minor, By and through
Wynjean Duarte, acting as her Next Friend; BRANDI DUARTE,

                                           Plaintiffs–Appellants
v.

CITY OF LEWISVILLE, TEXAS,

                                           Defendant–Appellee




                Appeal from the United States District Court
                     for the Eastern District of Texas


Before SMITH, WIENER, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      Plaintiffs–Appellants Aurelio Duarte (“Duarte”) together with his wife
and two children (collectively “the Duartes”) sued Defendant–Appellee the City
of Lewisville, Texas (“Lewisville”) for damages and injunctive relief under 42
U.S.C. § 1983. Duarte and his family challenge the constitutionality of a
Lewisville ordinance that prohibits registered child sex offenders from residing
within 1,500 feet of “where children commonly gather.” Duarte is a registered
child sex offender, and he asserts that he and his family have tried to find a
house to rent or buy in Lewisville but cannot because of the challenged
ordinance. The district court dismissed the Duartes’ constitutional claims for
lack of standing and, alternatively, as moot. We reverse and remand.
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                                  No. 13-40806
                            I.   BACKGROUND
      Duarte challenges the constitutionality of a Lewisville ordinance. The
ordinance provides:
      It is unlawful for a person to establish a permanent or temporary
      residence within 1,500 feet of any premises where children
      commonly gather if the person is required to register on the Texas
      Department of Public Safety’s Sex Offender Database (the
      “Database”) because of a conviction(s) involving a minor.
      The ordinance defines “premises where children commonly gather” to
include “all improved and unimproved areas on the lot where a public park,
public playground, private or public school, public or semi-public swimming
pool, public or non-profit recreational facility, day care center or video arcade
facility is located.” The ordinance enforces this restriction with the following
penalties:
      A person who violates any of the provisions of this ordinance shall
      be guilty of a misdemeanor and upon conviction, shall be fined a
      sum not to exceed $500.00 for each offense, and each and every
      violation or day such violation shall continue or exist, shall be
      deemed a separate offense.
      The ordinance also “grandfathers” certain residences. The ordinance
provides an affirmative defense if the person “established the permanent or
temporary residence . . . prior to the date of the adoption of this ordinance,” or
if “[t]he premises where children commonly gather . . . was opened after the
person established the permanent or temporary residence.”
A.    Aurelio Duarte’s Attempts to Find Housing in Lewisville
      Duarte was convicted of online solicitation of a minor in violation of
Texas Penal Code § 15.031 and sentenced to eight years in prison. On his
release from prison, Duarte returned to Lewisville, Texas, where he had
previously resided with his wife and children prior to his imprisonment, and
he registered as a child sex offender. Duarte’s wife worked near Lewisville,

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                                   No. 13-40806
and the Duartes’ daughters were enrolled in public school in Lewisville. With
his wife’s assistance, Duarte began looking for a house in Lewisville.
      The Duartes learned that, in 2008, Lewisville enacted an ordinance that
prohibits registered child sex offenders from residing within 1,500 feet of
“where children commonly gather.” In light of the ordinance, the Duartes
moved into a 275-square-foot one-bedroom motel room located on the service
road of Interstate 35W in Lewisville. At the time, this residence did not violate
the ordinance. But the motel is now within a proscribed protected zone because
of a newly constructed public and semi-public pool nearby.           Because the
Duartes established their residence there before the opening of the pool, they
could continue to lawfully reside there as the residence was “grandfathered.”
      The Duartes searched for another residence in Lewisville for
approximately eighteen months to no avail. Beginning in February 2010 and
continuing through August 2011, Duarte’s wife, Wynjean Duarte, periodically
contacted the Lewisville Sex Offender Registrar, Lisa Peck (“Peck”), to inquire
whether residences the Duartes wanted to rent or purchase were within the
prohibited zone. On at least nine occasions, Wynjean Duarte contacted Peck
to determine whether particular residences were within the protected zone.
On six occasions, Peck informed the Duartes that the residences were within
zones prohibited by the ordinance. Peck approved three addresses; however,
two of these were sold to someone else before the Duartes could purchase them.
Regarding the third house, Wynjean Duarte testified that Peck instructed her
in 2009 to wait until after Aurelio Duarte was released from incarceration to
move, in case a “premises where children commonly gather,” like “a day care[,]
. . . go[es] up there all of a sudden.”
      Lewisville points to evidence that the Duartes would have been unable
to purchase a home due to their financial circumstances. Aurelio Duarte has
been unemployed since 2009, they say.         Together, the Duartes had saved
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                                  No. 13-40806
approximately $200 in a bank account. The Duartes counter by pointing out
that Wynjean Duarte’s mother has offered to provide $5,000 for a down
payment on a house.      Moreover, although Aurelio Duarte is unemployed,
Wynjean Duarte works two jobs. She works full-time, 40 hours a week as an
accounting technician, and she works part-time, 20-to-25 hours a week, at
Sears.
B.    The District Court Dismisses the Duartes’ Claims
      The district court dismissed Duarte’s wife and daughters’ claims for lack
of standing under Federal Rule of Civil Procedure 12. Later, Lewisville moved
for summary judgment on Aurelio Duarte’s claims. Lewisville asserted that
there was no genuine dispute of material fact that Duarte lacked standing to
challenge the ordinance. The magistrate judge recommended that summary
judgment be granted and the case dismissed for lack of standing and,
alternatively, as moot. The district court adopted the recommendation in full,
granted summary judgment, and issued a final judgment in favor of Lewisville.
The Duartes timely appealed.
C.    Lewisville’s Evidence that Duarte Moved Away
      On appeal, Lewisville asks us to take judicial notice of the fact that on or
about August 1, 2013, the Duartes moved away from Lewisville to the City of
Lake Dallas.    Lewisville argues this new fact moots the case.          Lewisville
submits two certified copies of public records from the Lewisville Police and
from the Texas Department of Public Safety’s TxDPS Sex Offender Registry
showing that the Duartes moved to Lake Dallas. Because these public records
are the proper subject of judicial notice on appeal, they will be considered below
in evaluating Lewisville’s mootness argument. See In re Manges, 29 F.3d 1034,
1042 (5th Cir. 1994) (citing Fed. R. Evid. 201)).




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                                  No. 13-40806
                            II.   DISCUSSION
      The Duartes appeal the district court’s dismissal of their case for lack of
standing and, alternatively, as moot. This Court has jurisdiction to review the
district court’s final judgment under 28 U.S.C. § 1291. We review the district
court’s decision to dismiss for lack of standing de novo. Joffroin v. Tufaro, 606
F.3d 235, 238 (5th Cir. 2010). On review of a dismissal for lack of standing on
summary judgment, we “consider all the facts contained in the summary
judgment record and the inferences to be drawn therefrom in the light most
favorable to the non-moving party.”         United Indus., Inc. v. Eimco Process
Equip. Co., 61 F.3d 445, 447 (5th Cir. 1995).
A.    Standing
      The Duartes appeal the district court’s decision dismissing their
constitutional claims for lack of standing. Article III provides that the judicial
power of the federal courts extends only to “Cases” and “Controversies,” U.S.
Const. art. III, § 2, and standing is an “essential and unchanging part of [this]
requirement,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To
establish standing, a claimant must present (1) an actual or imminent injury
that is concrete and particularized, (2) fairly traceable to the defendant’s
conduct, and (3) redressable by a judgment in the plaintiff’s favor. Id. at 560–
61; accord Davis v. FEC, 554 U.S. 724, 733 (2008). As the proponents of federal
jurisdiction, the Duartes bear the burden to demonstrate standing to bring
their constitutional claims. Nat’l Fed’n of the Blind of Tex., Inc. v. Abbott, 647
F.3d 202, 209 (5th Cir. 2011).
      1.    Actual Injury
      Lewisville primarily argues that the Duartes lack standing because they
were never subjected to the ordinance’s restrictions and therefore cannot show
an actual injury. Lewisville contends: “It is . . . undisputed that [Duarte] has
not been cited or fined for violating the Ordinance,” and “Duarte legally lived
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                                 No. 13-40806
with his family [in a Lewisville motel] at an address that was grandfathered,
and therefore, the Ordinance had no application to him where he resided.” The
Duartes counter that they tried to move from the grandfathered address to a
new residence, but they were practically foreclosed from doing so by the
ordinance.
      The issue is therefore whether the Duartes established actual injury for
purposes of standing to challenge the constitutionality of the Lewisville
ordinance. The Supreme Court has explained that “actual injury” for standing
purposes means “an invasion of a legally protected interest which is
(a) concrete and particularized, and (b) actual or imminent, not ‘conjectural’ or
‘hypothetical.’” Lujan, 504 U.S. at 560 (citations omitted). In Lujan, the Court
explained a key question is “whether the plaintiff is himself an object of the
[government] action (or forgone action) at issue. If he is, there is ordinarily
little question that the action or inaction has caused him injury, and that a
judgment preventing or requiring the action will redress it.” Id. at 561–62.
The Court in Lujan held the plaintiffs there lacked standing to challenge the
Secretary of the Interior’s refusal to extend Endangered Species Act
protections to animals abroad. Id. at 562. The Court dismissed the case
because the individual plaintiffs expressed mere “some day intentions” and
failed to produce evidence on summary judgment of “concrete plans” to visit
the endangered animals abroad. Id. at 564–65 (internal quotation marks
omitted).
       It follows from Lujan that if a plaintiff is an object of a government
regulation, then that plaintiff ordinarily has standing to challenge that
regulation. This was the conclusion we reached in Time Warner Cable, Inc. v.
Hudson, 667 F.3d 630 (5th Cir. 2012). There, we considered a constitutional
challenge to a Texas regulatory scheme designed to remove barriers to market
entry for upstart cable-television providers. Id. at 634. Time Warner and other
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incumbent cable providers challenged the constitutionality of the Texas law,
and the district court dismissed the case for lack of standing. We reversed.
Relying on Lujan, we explained “[t]here can be no dispute that the plaintiffs
are the object of the government action here where [the law] singles out certain
incumbent operators as ineligible for the benefit of a statewide franchise.” Id.
at 636 (citing Lujan, 504 U.S. at 561–62). “Because the legislation targets the
plaintiffs for exclusion” we explained, “TCA and Time Warner have shown
constitutional injury sufficient to establish standing.” Id. at 637.
      Here, as in Time Warner Cable, Duarte is the target of the Lewisville
ordinance restricting where registered child sex offenders, like him, can live.
Duarte submitted evidence that, taken in the light most favorable to him,
establishes that he had “concrete plans” to reside in areas impacted by the
Lewisville ordinance, unlike the plaintiffs in Lujan. Duarte’s wife, on his
behalf, contacted the Lewisville County Sex Offender Registrar at least nine
times to inquire about potential residences.      The Sex Offender Registrar
informed the Duartes that six of these houses were in restricted areas. Of the
three available houses outside the restricted areas, Duarte proffered evidence
that two became unavailable in the time it took for the Sex Offender Registrar
to get back to the Duartes. Further, Duarte’s wife testified that she had
arranged to obtain a $5,000 down payment for a house from her mother. This
is a far cry from the evidence in Lujan, in which those plaintiffs expressed mere
“‘some day’ intentions—without any description of concrete plans” and
confessed that they had no current plans to travel to visit the endangered
wildlife. 505 U.S. at 563–64. In short, Duarte prepared and attempted to buy
or rent a house in Lewisville, and the ordinance made it more difficult, if not
impossible, for him to do so. Thus, Duarte has standing to challenge the
ordinance.


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                                 No. 13-40806
      We reach the same conclusion with respect to Duarte’s wife and
daughters. Lewisville argues that its ordinance “clearly does not apply to
them” because, unlike Aurelio Duarte, they are not registered child sex
offenders.   Lewisville continues that the ordinance has not prevented the
family from living together. But this argument overlooks the practical impact
of the Lewisville ordinance on the family. As a practical matter, the Duartes
were forced to live in a one-bedroom motel room to comply with the ordinance.
In order to find a place to rent or buy where the family could reside together,
ultimately, the Duartes moved away, forcing the children to change schools
and taking Wynjean Duarte farther from her job. The ordinance therefore
interferes with the Duartes’ lives “in a concrete and personal way” which the
Supreme Court has held is sufficient to confer standing. See Summers v. Earth
Island Inst., 555 U.S. 488, 497 (2009) (quoting Lujan, 504 U.S. at 580–81
(Kennedy, J., concurring)).
      Lewisville’s reliance on a decision from a district court in Ohio is
misplaced because that case, Coston v. Petro, 398 F. Supp. 2d 878 (S.D. Ohio
2005), is distinguishable.    The differences between Coston and this case
illustrate why the Duartes have standing here. In Coston, six registered sex
offenders sued to enjoin enforcement of an Ohio statute that forbids registered
sex offenders from residing “within 1,000 feet of a school premises.” Id. at 880.
The district court dismissed the case because the plaintiffs lacked standing.
Id. at 887. The court reasoned that the statute did not apply to one of the
plaintiffs because he was not convicted of a sexually motivated crime after
1997, as the statute required. Id. at 883. The remaining plaintiffs neither
lived within 1,000 feet of a school, nor produced any evidence of a “present or
imminent intention of moving to a residence within 1,000 feet of a school
premises.” Id. at 884. The court also reasoned “these Plaintiffs have failed to
present any evidence that [the sex-offender-residency restriction] has
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prevented them from relocating to a residence within 1,000 feet of a school
premises.” Id. In contrast here, the Duartes presented evidence that they
intended to reside at six specific residences within 1,500 feet of where children
commonly gather. They did not move there because the Sex Offender Registrar
informed them that they could not lawfully do so.                    Unlike Coston, it is
undisputed here that the Lewisville ordinance applies to Duarte. Thus, Coston
is distinguishable.
       Lewisville’s reliance on FW/PBS, Inc. v. City of Dallas, 493 U.S. 215
(1990) is similarly unavailing. In FW/PBS, the Supreme Court considered the
constitutionality of Dallas’s comprehensive licensing scheme regulating adult-
entertainment and cabaret businesses.                Id. at 220–21.        The regulations
prohibited the issuance of an adult-entertainment license to individuals
recently convicted of specific crimes, among other restrictions. Id. The Court
dismissed the plaintiffs’ challenge to this provision because they either had not
been convicted of an enumerated crime, or had not shown the conviction was
sufficiently recent. Id. at 234–35. This case is distinguishable. Unlike the
petitioners in FW/PBS, it is undisputed that Duarte was convicted of a crime
enumerated by the Lewisville ordinance. Cf. FW/PBS, 493 U.S. at 234 (“[T]he
record does not reveal any party . . . was convicted of any of the enumerated
crimes.”). Thus, FW/PBS is also inapposite. 1
       In this case, the district court erroneously granted summary judgment
for lack of standing because it conflated the actual-injury inquiry for standing


       1  Lewisville also cites two state court decisions from Georgia and Ohio denying
standing to sex offenders challenging residency restrictions. These state law cases are
irrelevant because Article III standing doctrine “respond[s] to concerns that are peculiarly
federal in nature.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 262
n.8 (1977); Int’l Primate Prot. League v. Adm’rs of the Tulane Educ. Fund, 895 F.2d 1056,
1061 (5th Cir 1990), rev’d on other grounds, 500 U.S. 72 (1991) (“[S]tanding requirements in
state courts . . . lack[] relevance here, as standing in federal court is determined entirely by
Article III.”).

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purposes with the underlying merits of the Duartes’ constitutional claims. The
district court concluded Duarte lacked standing because he resided in a motel
room grandfathered under the ordinance, and had not yet been cited or
prosecuted under the ordinance. But “it is not necessary that petitioner first
expose himself to actual . . . prosecution to be entitled to challenge a statute
that he claims deters the exercise of his constitutional rights.”                 Steffel v.
Thompson, 415 U.S. 452, 459 (1974). The Duartes’ fears of liability are not
“imaginary or speculative.” Id. (internal quotation marks omitted). Instead,
their fears are based on correspondence with the Sex Offender Registrar
warning against purchasing or renting specific properties. The district court
rejected Duarte’s argument that he had been “all but prohibited . . . from
residing at any location within . . . the City of Lewisville,” because three
residences were available. But the Duartes need not show they were “legally
foreclosed from purchasing or leasing residential premises due solely to the . . .
City of Lewisville,” as the district court apparently believed. Instead, they
need only show that the ordinance treats them differently from other would-be
renters or homebuyers making it “differentially more burdensome” for the
Duartes to find a new place to live for standing purposes. See Time Warner
Cable, 667 F.3d at 637 (quoting Minneapolis Star & Tribune Co. v. Minn.
Comm’r of Revenue, 460 U.S. 575, 588 (1983)). The factors the district court
found significant may ultimately bear on whether Duarte can show
constitutional injury to merit an award of damages or injunctive relief—on
which we express no opinion. 2 But the district court improperly relied on these



       2We note that the district court, in reviewing the magistrate judge’s recommendation,
adopted a clearly erroneous view of the record. The district court erroneously stated: “[T]he
evidence shows that at the time the defendant’s motion for summary judgment was filed,
there were 466 houses on the market and available to registered sex offenders within the City
of Lewisville.” (emphasis added). But review of the record would have revealed that—taking
the defendant’s brief in support of its motion for summary judgment as true—of the “460
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considerations in dismissing the Duartes’ constitutional challenge for lack of
standing. 3
      2.        Traceable and Redressable
       Lewisville alternatively argues the judgment of the district court can be
affirmed because “[t]here is no causal link between the Appellants[’] claimed
failure to find a residence and the enactment of the ordinance.” We disagree.
       The Supreme Court has held that a plaintiff has standing if the injury
alleged is both “fairly traceable to the Government conduct . . . challenge[d] as
unlawful,” and redressable, in that the plaintiff will likely “obtain[] relief from
the injury as a result of a favorable ruling.” Allen v. Wright, 468 U.S. 737, 752,
757 (1984). For example, in Allen v. Wright, the parents of black public school
children sued the IRS arguing it had not adopted appropriate procedures to
deny tax-exempt status to racially discriminatory private schools. The Court
held the parents alleged a concrete injury—“their children’s diminished ability
to receive an education in a racially integrated school”—but held they
nonetheless lacked standing because the “line of causation between [the IRS’s]
conduct and desegregation of [their children’s] schools is attenuated at best.”
Id. at 756–57. The Court reasoned “it is entirely speculative . . . whether
withdrawal of a tax exemption from any particular school” would redress the
parents’ injuries and “lead a school to change its policies.” Id. at 757.
       Here, there is a genuine dispute whether the Duartes’ inability to find a
home in Lewisville is fairly traceable to the ordinance challenged. Viewing the



homes in Lewisville that were outside the buffer zones,” only “nine houses [were] for sale or
rent.”
       3 The district court and the magistrate judge also focused on the facts existing “at the

time the defendant’s motion for summary judgment was filed,” even though the Supreme
Court’s “longstanding rule” is that standing “is to be assessed under the facts existing when
the complaint is filed.” Lujan, 504 U.S. at 569–70 & n.4; accord Loa–Herrera v. Trominski,
231 F.3d 984, 987 (5th Cir. 2000) (“In identifying an injury that confers standing, courts look
exclusively to the time of filing.” (emphasis added)).
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evidence in the light most favorable to the Duartes, one could reasonably infer
the reduction of available houses from potentially tens-of-thousands to 466
residences, of which only a handful were available to rent or purchase at a
given time, is fairly traceable to the ordinance. Although market forces play a
role, the chain of causation is not nearly as attenuated as the connection
between IRS tax exemptions, private-school policies, and public-school
desegregation in Allen v. Wright. Moreover, it is likely a judgment in the
Duartes’ favor would at least make it easier for them to find a residence to rent
or buy in Lewisville. Thus, the Duartes have met the traceable and redressable
requirements of standing.
B.     Mootness
       The district court dismissed the Duartes’ constitutional claims, in the
alterantive, as moot because the Duartes had not pursued a new home in the
two years after they initially filed their complaint. The Duartes contend the
district court’s conclusion that their constitutional claims were moot was error
because they amply demonstrated that Duarte “desires and intends to secure
a residence in Lewisville wherein he and his immediate family can reside
together” and because they maintain a claim for damages. Lewisville counters
this case is moot because “[a]ny controversy vanished when the Appellants left
Lewisville,” referring to the judicially noticed fact that the Duartes now live in
Lake Dallas.
       The district court’s conclusion and Lewisville’s argument on appeal
overlook the Duartes’ claims for monetary relief. “This court and others have
consistently held that a claim for nominal damages avoids mootness.” Morgan
v. Plano Indep. Sch. Dist., 589 F.3d 740, 748 & n.32 (5th Cir. 2009) (collecting
cases); see also 13C Charles A. Wright & Arthur R. Miller et al., Federal
Practice and Procedure § 3533.3 (3d ed. 2013) (“Claims for damages or other
monetary relief automatically avoid mootness, so long as the claim remains
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viable.”).     The Duartes’ complaint explicitly states that they seek
“compensatory damages” for deprivation of constitutional rights as well as
“nominal damages pursuant to Title 42 U.S.C., Section 1983.” Under our
decision in Morgan, these claims for monetary relief are sufficient to defeat
mootness. See 589 F.3d at 748–49; see also Powell v. McCormack, 395 U.S.
486, 496 n.8 (1969) (“Where several forms of relief are requested and one of
these requests subsequently becomes moot, the Court has still considered the
remaining requests.”). 4
                              III.   CONCLUSION
       For the foregoing reasons, we REVERSE the district court and REMAND
for further proceedings.




      4  Because the Duartes’ constitutional claims are not moot, we need not and do not
decide whether their requests for injunctive relief are moot. The district court may decide
this question on remand.
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