United States District Court, E.D. Virginia, Alexandria Division
M. BRINKEMA UNITED STATES DISTRICT JUDGE.
& Tanya & Associates, Inc. ("BTA" or
"plaintiff') has filed a complaint alleging that
Virginia's statutory scheme governing signs placed
"within the limits of highways-on its face and as
enforced by Fairfax County ("County"), the
County's Board of Supervisors ("Board")
(collectively, the "County Defendants"), and
Virginia's Commissioner of Highways
("Commissioner")-violates the First and Fourteenth
Amendments to the U.S. Constitution. Before the Court are the
County Defendants' motion to dismiss [Dkt. No. 49], the
Commissioner's motion to dismiss [Dkt. No. 52], and
BTA's motion for summary judgment and injunctive relief
[Dkt. No. 55]. The Court has heard oral argument and received
supplemental briefing. For the reasons stated below,
defendants' motions to dismiss will be granted, BTA's
motion will be denied, and judgment will be entered in favor
a real estate company operating across Burke, Springfield,
and Fairfax Station, Virginia. Pl.'s Br. in Supp. of Its
Mot. for Partial Summ. J. and for a Prelim. Inj. [Dkt. No.
56] ("BTA's SJ Br.") 4; id. Ex. A
[Dkt. No. 56-1] ("Tyburski Decl.") ¶¶
2-3. "[A]s a service to BTA's clients," BTA
often posts real estate sales signs immediately adjacent to
highways. Am. Compl. [Dkt. No. 46] ¶¶ 9-10;
Pl.'s Reply in Supp. of Its Mot. for Partial Summ. J.
[Dkt. No. 65] 2. For most of BTA's 30-year history, its
posting of real estate sales signs met with little
resistance. Although the Virginia Department of
Transportation ("VDOT") would remove signs
"once or twice a year," BTA never received any
fines. Tyburski Deck ¶¶ 4-5.
in April 2012, VDOT notified BTA that its signs were
violating section 33.2-1224 of the Virginia Code, which
prohibits posting signs or advertisements "within the
limits of any highway." BTA's SJ Br. 4. VDOT's
enforcement efforts were soon joined by those of the Board,
which in March 2013 signed a cooperative agreement with the
Commissioner to enforce section 33.2-1224. Tyburski Deck
¶ 13; see Am. Compl. Ex. B [Dkt. No. 46-2]
("Enforcement Agreement"). VDOT and the Board enjoy
concurrent authority: VDOT is responsible for all roads in
the County, see Commissioner of Highway's Memo, in
Opp'n to Pl.'s Mot. for Summ. J. [Dkt. No. 63]
("Comm'r's SJ Opp'n") 2-3, and the
Board enforces section 33.2-1224 on designated roads in
Fairfax County through its Illegal Sign Removal Program,
BTA's SJ Br. 5; id Ex. C [Dkt. No. 56-3].
first three years of the Illegal Sign Removal Program, the
County collected signs believed to be in violation of the
statute but issued no fines. Memo, in Supp. of Defs. Board of
Supervisors and Fairfax County's Mot. to Dismiss Am.
Compl. [Dkt. No. 50] ("Cty. Defs.' MTD Memo.")
2; BTA's SJ Br. 5. The enforcement strategy changed when
the Department of Code Compliance ("DCC") began
assisting with enforcement efforts. From March to October 2016,
the Board fined BTA at least 89 times. BTA's SJ Br. 5.
BTA, considered to be an "egregious violator" of
section 33.2-1224, see Cty. Defs.' MTD Memo. 2, accounted
for a sizable portion of the Board's efforts. For
example, from May until October 2016, approximately 21% of
all fines issued by the Board went to BTA. BTA's SJ Br.
5; id Ex. F [Dkt. No. 56-6].
December 2016, the Board sued BTA in Fairfax County Circuit
Court for payment of outstanding fines and to enjoin BTA from
placing more signs along County highways. BTA's SJ Br.
5. BTA filed a counterclaim in the state court proceeding,
raising First and Fourteenth Amendment claims against the
Board under 42 U.S.C. § 1983. It also attempted to add
the Commissioner through a third-party complaint but was
unsuccessful. Memo, in Supp. of Defs.' Mot. to Dismiss
[Dkt. No. 53] ("Comm'r's MTD Memo.") 2. BTA
took a nonsuit on its counterclaim before trial in September
2017. Id. After BTA initiated this
civil action, the parties agreed to ask the state court to
stay that proceeding, and that request was granted. See
Pl.'s Consolidated Opp'n to the Defs.' Mots, to
Dismiss [Dkt. No. 25] 7-8.
has long regulated signs near highways "to promote the
safety, convenience and enjoyment of travel..., to attract
tourists and promote the prosperity, economic well-being and
general welfare of the State, and to preserve and enhance the
natural scenic beauty or aesthetic features of the highways
and adjacent areas." Act of Apr. 1, 1970, ch. 322,
§ 33.1-351, 1970 Va. Acts 459, 555 (codified as amended
at Va. Code Ann. § 33.2-1200(A)). Chapter 12, Article 1
of Title 33.2 of the Virginia Code ("Article 1")
governs "the erection and maintenance of outdoor
advertising in areas adjacent to the rights-of-way of the
highways within the Commonwealth." Va. Code Ann. §
33.2-1200(A). Most of Article 1 addresses signs "visible
from" highways. See, e.g.,
id. § 33.2-1205 (establishing a licensing
system for advertisements "visible from the main
traveled way" of any highway); id § 33.2-1208
(establishing a similar permitting system). One provision of
Article 1 is narrower: Section 33.2-1224 ("Highway Signs
Statute") generally prohibits placing any signs
"within the limits of a highway:
Any person who in any manner (i) paints, prints, places,
puts, or affixes any sign or advertisement upon or to any
rock, stone, tree, fence, stump, pole, mile-board, milestone,
danger-sign, guide-sign, guidepost, highway sign, historical
marker, building, or other object lawfully within the limits
of any highway or (ii) erects, paints, prints, places, puts,
or affixes any sign or advertisement within the limits of any
highway is subject to a civil penalty .... Signs or
advertisements placed within the limits of the highway are
hereby declared a public and private nuisance and may be
forthwith removed, obliterated, or abated by the Commissioner
of Highways or his representatives without notice.... In
addition, the Commissioner of Highways or his representative
may seek to enjoin any recurring violator of this section.
The Commissioner of Highways may enter into agreements with
any local governing body authorizing local law-enforcement
agencies or other local governmental entities to act as
agents of the Commissioner of Highways for the purpose of (i)
enforcing the provisions of this section and (ii) collecting
the penalties and costs provided for in this section....
Va. Code Ann. § 33.2-1224.
issue in this litigation is the interaction between the
Highway Signs Statute and section 33.2-1204 ("Exceptions
Statute"). The Exceptions Statute exempts certain
categories of signs from some of the provisions in Article 1.
The exempt signs range from those "relating solely to
farm produce, merchandise, service, or entertainment" to
those "warning the public against hunting, fishing, or
trespassing" to those "advertising only the name,
time, and place of bona fide agricultural, county, district,
or state fairs." Va. Code Ann. § 33.2-1204(2),
April 2018, the Virginia General Assembly amended the
Exceptions Statute. See Act of Apr. 6, 2018, 2018 Va. Laws
ch. 794. The amendment changed the statute in two ways. It
first made explicit that the types of signs described in the
Exceptions Statute were not exempt from the broad prohibition
in the Highway Signs Statute unless specifically noted. It
then identified six types of signs that are exempt from the
Highway Signs Statute (identified as "§
amended, the Exceptions Statute provides:
The following signs and advertisements, if securely attached
to real property or advertising structures, and the
advertising structures or parts thereof upon which they are
posted or displayed are excepted from all the provisions of
[Article 1 ] except those enumerated in ... [§]
5. Notwithstanding the provisions of § 33.2-1224, danger
or precautionary signs relating to the premises or signs
warning of the condition of or dangers of travel on a highway
erected or authorized by the Commissioner of Highways; forest
fire warning signs erected under authority of the State
Forester; and signs, notices, or symbols erected by the
United States government under the direction of the U.S.
6. Notwithstanding the provisions of § 33.2-1224,
notices of any telephone company, telegraph company,
railroad, bridges, ferries, or other transportation company
necessary in the discretion of the Commissioner of Highways
for the safety of the public or for the direction of the
public to such utility or to any place to be reached by it;
12. Notwithstanding the provisions of § 33.2-1224,
historical markers erected by duly constituted and authorized
13. Notwithstanding the provisions of § 33.2-1224,
highway markers and signs erected or caused to be erected by
the Commissioner of Highways or the Board or other
authorities in accordance with law;
15. Notwithstanding the provisions of § 33.2-1224, signs
erected by Red Cross authorities relating to Red Cross
Emergency Stations, with authority hereby expressly given for
the erection and maintenance of such signs upon the
right-of-way of all highways in the Commonwealth at such
locations as may be approved by the Commissioner of Highways;
19. Notwithstanding the provisions of § 33.2-1224, signs
containing advertisements or notices that have been
authorized by a county and that are securely affixed to a
public transit passenger shelter that is owned by that
county, provided that no advertisement shall be placed within
the right-of-way of the Interstate System, National Highway
System, or federal-aid primary system of highways in
violation of federal law....
Va. Code Ann. §33.2-1204.
filed its initial complaint in October 2017 and filed an
Amended Complaint on February 9, 2018 [Dkt. No. 46]. The
Amended Complaint alleges multiple violations of BTA's
constitutional rights, including that the Commonwealth's
statutory scheme for regulating signs near highways violates
the First Amendment, is unconstitutionally vague, and has
been selectively enforced against BTA. Count I of the Amended
Complaint seeks declaratory relief; Count II seeks damages,
injunctive relief, attorney's fees, and costs under 42
U.S.C. §§ 1983 and 1988.
the County Defendants and the Commissioner have moved to
dismiss the Amended Complaint, and BTA has moved for partial
summary judgment and for preliminary or permanent injunctive
relief. The Court heard oral argument on the parties'
motions and required supplemental briefing on the effect of
the April 2018 amendment to the Exceptions Statute in October
2018. That briefing has been provided.
Standards of Review
Rule 12(b)(1) of the Federal Rules of Civil Procedure, an
action must be dismissed if the court lacks subject matter
jurisdiction. The plaintiff, as the party asserting
jurisdiction, bears the ultimate burden of proving such
jurisdiction. Adams v. Bain, 697 F.2d 1213, 1219
(4th Cir. 1982). If "a complaint simply fails to allege
facts upon which subject matter jurisdiction can be based[, ]
... all the facts alleged in the complaint are assumed to be
true and the plaintiff, in effect, is afforded the same
procedural protection as he would receive under a Rule
12(b)(6) consideration." Id. But in the event
of a factual dispute over the jurisdictional allegations in
the complaint, the court may consider evidence outside the
complaint "without converting the proceeding to one for
summary judgment." Id.
complaint should be dismissed under Rule 12(b)(6) if it
"fail[s] to state a claim upon which relief can be
granted." Fed.R.Civ.P. 12(b)(6). To survive a 12(b)(6)
motion, "a complaint must contain sufficient factual
matter, accepted as true, to 'state a claim to relief
that is plausible on its face.'" Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. The plausibility standard
"is not akin to a 'probability requirement,' but
it asks for more than a sheer possibility that a defendant
has acted unlawfully." Id. (quoting
Twombly, 550 U.S. at 570). The Court must
"assume the facts alleged in the complaint are true and
draw all reasonable factual inferences in [the plaintiffs]
favor," Burbach Broad. Co. of Del, v. Elkins Radio
Corp.. 278 F.3d 401, 406 (4th Cir. 2002), but only to
the extent those allegations pertain to facts rather than
legal conclusions. See Iqbal, 556 U.S. at 678-79.
judgment is appropriate where "the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). A fact is material only if it "might
affect the outcome of the suit under the governing law,"
Libertarian Party of Va. v. Judd, 718 F.3d 308, 313
(4th Cir. 2013) (citation omitted), and a dispute is genuine
only "if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party,"
Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248
(1986). Although the evidence, and the inferences drawn
therefrom, must be viewed in the light most favorable to the
nonmovant, the nonmovant "must do more than simply show
that there is some metaphysical doubt as to the material
facts." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986).
preliminary injunction "is an extraordinary remedy never
awarded as of right." Winter v. Nat. Res. Def.
Council Inc.. 555 U.S. 7, 24 (2008). To be entitled to
such a remedy, plaintiff must show that it is likely to
succeed on the merits, that it will likely suffer irreparable
harm absent an injunction, that the balance of hardships
weighs in its favor, and that an injunction is in the public
interest. League of Women Voters of N.C. v. North
Carolina, 769 F.3d 224, 236 (4th Cir. 2014). Although
plaintiff must "make a 'clear showing' that [it
is] likely to succeed at trial, ... [it] need not show a
certainty of success." Pashby v. Delia, 709
F.3d 307, 321 (4th Cir. 2013) (citation omitted). And even if
this showing is made, "whether to grant the injunction
still remains in the 'equitable discretion' of the
court." Christopher Phelps & Assoc. LLC v.
Galloway, 492 F.3d 532, 543 (4th Cir. 2007). A similar
standard governs permanent injunctions, for which the movant
must show (i) "that it has suffered an irreparable
injury"; (ii) "that remedies available at law, such
as monetary damages, are inadequate to compensate for that
injury"; (iii) "that, considering the balance of
hardships between the plaintiff and defendant, a remedy in
equity is warranted"; and (iv) "that the public
interest would not be disserved by a permanent
injunction." Boston Correll v. Herring, 212
F.Supp.3d 584, 615 (E.D. Va. 2016) (quoting eBay Inc. v.
MercExchange, L.L.C.. 547 U.S. 388, 391 (2006)).
heart of this action is BTA's claim that the Highway
Signs Statute and Exceptions Statute (collectively, the
"Sign Statutes") violate its First Amendment right
to free speech. Before the Court can reach that claim, it
must first resolve several antecedent issues raised by
defendants in their motions to dismiss.
State Sovereign Immunity
Commissioner first moves for dismissal of this action based
on a claim of state sovereign immunity. Generally, absent a
state's waiver or a valid abrogation by Congress,
"federal courts may not entertain a private person's
suit against a State." Id. at 253-54. This
immunity covers not only the state itself but also
"arm[s] of the State." Mt. Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977).
Moreover, because a state official sued in his official
capacity stands in for the entity he represents, he is
equally entitled to assert that entity's sovereign
immunity from suit. See Kentucky v. Graham, 473 U.S.
159, 167 (1985).
sovereign immunity is not absolute. As relevant here, the
doctrine recognized in Ex parte Young, 209 U.S. 123
(1908), provides that "private citizens may sue state
officials in their official capacities in federal court to
obtain prospective relief from ongoing violations of federal
law." Allen v. Cooper, 895 F.3d 337, 354 (4th
Cir. 2018). When a state official is sued solely for
prospective relief in an official capacity, he "loses
'the cloak' of State immunity." Id.
(quoting Bragg v. W.Va. Coal Ass'n. 248 F.3d
275, 292 (4th Cir. 2001)). Regardless of how a claim is
styled, courts must ask whether the claim seeks prospective
relief that will "govern the official's future
conduct" or instead seeks "retroactive monetary
relief." Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 102-03 (1984); see Verizon
Md.. Inc. v. Pub. Serv. Comm'n of Md.. 535 U.S. 635,
645 (2002) (describing the inquiry as whether a plaintiffs
complaint "alleges an ongoing violation of federal law
and seeks relief properly characterized as prospective"
conceded that it is not seeking any monetary relief,
retroactive or otherwise, from the Commissioner. Pl.'s
Opp'n to Commissioner of Highway's Mot. to Dismiss
[Dkt. No. 59] ("BTA's Opp'n to Comm'r's
MTD") 5 n.2. Instead, "[i]t seeks to have this
Court declare that the Sign Statutes are unconstitutional and
to enjoin the Commissioner ... from violating federal
constitutional law." Id. at 6. What BTA wants,
in essence, is to change how the Commissioner enforces the
Sign Statutes going forward. This is the essence of an Ex
parte Young action. Accordingly, the Commissioner's
immunity argument fails.
Liability Under § 1983