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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_________________________
No. 12-15832
_________________________
D.C. Docket No. 3:11-cv-00571-RV-EMT
OCCUPY PENSACOLA,
SARA J. BEARD,
MICHAEL B. KIMBERL,
GARY PAULL, JR.,
Plaintiffs-Appellants,
versus
CITY OF PENSACOLA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(June 19, 2014)
Before TJOFLAT, MARCUS, and RIPPLE,* Circuit Judges.
*
Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh Circuit,
sitting by designation.
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RIPPLE, Circuit Judge:
Occupy Pensacola (“Occupy”) created an encampment on city land in
Pensacola, Florida (“Pensacola” or the “City”), to conduct a protest in 2011.1 The
City claimed that Occupy was in violation of its ordinances and evicted Occupy
from its land. Occupy then brought an action in state court that was removed to the
district court. In its amended complaint, it asserted facial and as-applied First
Amendment challenges to the city ordinances. It also set out a Fourteenth
Amendment selective enforcement claim in which it alleged that the City had
enforced selectively an ordinance that prohibited tents on public land without
authorization.
The district court granted summary judgment for Pensacola on the selective
enforcement claim. It determined that the plaintiffs had failed to establish that the
City had enforced selectively its ordinance against the use of tents on public land
(the “Tent Ordinance”). The court then dismissed the remaining claims. In its
view, it could not give relief with respect to these other claims because each was
dependent on Occupy’s right to use tents and, except for the selective enforcement
claim which Occupy had failed to prove, the Tent Ordinance had not been
1
Though the Plaintiffs-Appellants include both Occupy and several individuals, we refer
to them collectively as Occupy.
2
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challenged.
Occupy timely appealed the summary judgment decision. It later filed,
however, a motion challenging our appellate jurisdiction in which it contended
that the district court had not entered a final judgment because the district court
had considered only the selective enforcement of the Tent Ordinance claim and
had not ruled separately on each of the other claims. We directed that this
jurisdictional challenge be carried with the case.
We now determine that we have jurisdiction over the appeal because the
district court did in fact adjudicate each of the claims and enter a final judgment.
We further hold that the district court misapprehended the gist of the remaining
four claims. In our view, these claims are not dependent on the Tent Ordinance
and therefore warrant further adjudication. Accordingly, we affirm the district
court’s judgment with respect to the selective enforcement claim and vacate the
judgment and remand the case to the district court for further proceedings with
respect to the remaining claims.2
2
Occupy makes no substantive argument in its appellate brief with respect to the
allegation in Count IV that the special-events ordinance was enforced selectively. We therefore
consider that matter to have been abandoned by Occupy. We shall not discuss it here nor shall the
district court revisit the issue on remand.
3
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I
BACKGROUND
A. Occupy’s Protest
Occupy Pensacola is a group of individuals who describe themselves in the
complaint as an unincorporated association active “in educating and bringing
awareness of political, social, and economic justice issues through demonstrations,
marches, rallies, presentations, discussions, and a 24-hour round-the-clock vigil on
public property.”3 Occupy began its protest with a rally on October 15, 2011, at the
Martin Luther King, Jr. Plaza (“the Plaza”) in Pensacola. Its protest continued
without pause, save for one exception, until the City evicted Occupy from city
land on November 18, 2011.
The City and Occupy initially seem to have had a cooperative relationship.
At the City’s request, Occupy briefly took down its protest demonstration on
October 21 to avoid interfering with another event in the Plaza. At the request of
Pensacola Mayor Ashton Hayward, Occupy also moved its protest from the Plaza
to the north lawn of Pensacola’s City Hall on October 28.
The City gave Occupy a Letter of No Objection dated October 26, 2011,
stating that Occupy did not need a permit to engage in its demonstration on the
3
R.24 at 2.
4
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north lawn of City Hall from October 28 through November 30. The letter noted
that Occupy’s “request for a variance on the ‘no day or night camping’ [rule] ha[d]
been granted.”4 In a separate paragraph, the letter stated that “[i]t is not necessary
for [Occupy] to have a permit in the City Limits to engage in such activity,” but
added that Occupy did “need to be aware that the City regulates various activities
such as the creation of noise, the passing out of flyers or activities such as cooking
in the park.”5 The City later gave Occupy a second Letter of No Objection dated
October 28. The second letter was identical to the first except in its provision that
city approval for the protest expired on November 11, 2011, rather than November
30.
On October 27, the day before Occupy moved to the north lawn, city
representatives informed Occupy that the Tent Ordinance prevented Occupy from
erecting tents. That same day, Occupy sought and received approval for its tents
from the City Council. The mayor also approved Occupy’s use of tents on the
north lawn until November 11.6 Occupy’s permission to use tents in its protest is
4
Id. at 43.
5
Id.
6
At a city council meeting on October 27, Occupy members sought and obtained city
council approval of a resolution permitting tents until November 11, 2011. The mayor
subsequently consented to the resolution. Id. at 7.
5
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reflected in the Letters of No Objection it received from the City.
In the weeks after Occupy received city approval for its use of tents,
however, the protest grew significantly in size. The encampment’s growth spurred
increasing concerns about health and safety. At a city council meeting on
November 10, the Tent Ordinance’s application to the Occupy protest was
discussed. City Administrator William Reynolds erroneously stated at that meeting
that the Tent Ordinance never had been enforced even though it was more than
forty years old. Reynolds also stated that the City likely would not attempt to
enforce the Tent Ordinance against Occupy.
Although the City had assured Occupy earlier that no permit was needed for
its protest, the City asked Occupy to apply for a special-events permit on
November 16. Occupy refused to apply for the permit. The City then revoked its
permission for Occupy to use tents on city property, informed Occupy that it was
in violation of unspecified city ordinances, evicted Occupy, and forced Occupy to
cease protesting in any manner on the north lawn between eleven at night and six
in the morning. A notice to Occupy dated November 17 stated:
Due to the failure of [Occupy] to apply for a permit under
applicable city codes . . . and for the protection and proper
maintenance of public areas, the Mayor . . . has determined that your
24 hour use of public lands is no longer tenable.
6
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....
Once City property has been returned to its pre-occupation
state, you may continue lawful protest activities between the hours of
6 a.m. to 11 p.m. Structures will not be permitted to be erected during
the course of any future protest activity.[7]
Occupy was evicted on November 18, 2011. Occupy timely filed this action.
B. City Ordinances
A number of city ordinances are implicated in this appeal. We shall describe
them briefly and then indicate how they are implicated in Occupy’s challenge.
1.
Pensacola’s special-events permitting scheme applies to the “[t]emporary
use of public property . . . for the purposes of conducting certain outdoor,
short-term events such as a festival, parade, rodeo, fund raising, walkathon,
bikeathon, jogging activity, or any other similar organized activity . . . wherein
public streets, parks, or other public areas are to be utilized.” Pensacola, Fla., Code
§ 11-4-171 (2013).8 Section 11-4-172 specifies that applicants for a permit must
provide assurance that they will “make provision for” adequate police presence
and garbage cleanup associated with the special event. Id. § 11-4-172. It also
7
Id. at 60.
8
The relevant sections of the current municipal code are identical to those in effect at the
time of Occupy’s challenge.
7
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requires applicants to provide “[s]uch other information as the mayor may deem
necessary in order to properly provide for traffic-control, street and property
maintenance and the protection of the public health, safety and welfare.” Id. A
subsequent section, 11-4-174, requires that an applicant who has appealed the
denial of a permit or waiver receive a decision from the mayor within ten days. If
the mayor also denies the permit and the applicant appeals the mayor’s decision,
the city council must hear the appeal by its next regularly scheduled meeting after
receiving notice of the appeal. Neighborhood block parties are exempt from the
special-events permitting scheme.
With respect to this scheme, Occupy alleged in Count I of its amended
complaint that the scheme was facially unconstitutional. In Count II, Occupy
alleged that the special-events permitting scheme was unconstitutional as applied
to Occupy’s protest. In Count IV of its complaint, Occupy alleged that this scheme
had been applied selectively against it.9
2.
The Tent Ordinance provides:
It shall be unlawful for any person to have, maintain, occupy or
use, or cause to be maintained, occupied or used, any fence,
9
Count III, which challenged the application of city park regulations to the north lawn of
City Hall, did not concern the special-events permitting scheme.
8
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enclosure, building, house, shed, tent or any structure or any
obstruction whatsoever, on any street, park or property, or any part or
portion thereof, of the city, without the written permission of the
mayor, authorized by resolution of the city council, first had and
obtained.
Id. § 8-1-7. In Count IV of the complaint, Occupy alleged that this ordinance had
been selectively enforced against it.
3.
The parade permitting scheme challenged by Occupy states:
No procession or parade excepting the forces of the United
States Army or Navy, the military forces of this state and the forces of
the police and fire departments or designated funeral procession, shall
occupy, march or proceed along any street except in accordance with
a permit issued by the mayor and other regulations as are set forth
herein which may apply.
Id. § 8-1-13. In Count V of its complaint, Occupy alleged that this ordinance was
facially unconstitutional and unconstitutional as applied to the activities of
Occupy.
4.
Finally, Occupy challenged the application of certain city park regulations.
In Count III, it claimed that these regulations were applied wrongfully because
they were applied retroactively and in a selective manner against them.
9
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C. District Court Proceedings
In addition to setting forth the five counts that we have just described,
Occupy also included in its complaint fifteen prayers for relief, including requests
for injunctions to prevent the City from enforcing the special-events permitting
scheme, the Tent Ordinance, park regulations on the north lawn of City Hall and
the parade permit requirement. The prayers for relief also sought judicial
declarations that the north lawn of City Hall is a public forum; that Occupy has a
right to protest at all times on public sidewalks, including the interior sidewalks of
City Hall; that Occupy has a right to march without permits; that Occupy has a
right to have tents; and that all of the challenged ordinances violate Occupy’s First
and Fourteenth Amendment rights.
After the parties filed cross motions for summary judgment, the district
court granted summary judgment for Pensacola on the part of Count IV that
alleged that it had selectively enforced the Tent Ordinance. It held that Occupy
had failed to establish its case. The court then dismissed the rest of Occupy’s
claims because, in its view, those claims would “have no impact” on the case’s
outcome.10 In the district court’s view, the pitching of tents on city property was
essential to Occupy’s case; unless Occupy was able to protest by pitching tents on
10
R.117 at 6.
10
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city property, it simply could not conduct the symbolic protest that it desired to
conduct. The court then reasoned that, because Occupy had failed on its only
challenge to the Tent Ordinance, any relief granted on the other counts would be
ineffectual in achieving Occupy’s purpose. No other relief would allow the
pitching of tents. Any further relief on the remaining counts therefore would be
gratuitous and advisory.
II
DISCUSSION
A.
We first address our appellate jurisdiction. Occupy has suggested by motion
that the district court’s determination that it was unnecessary to address Counts I,
II, III and V of the complaint amounts to a failure to adjudicate completely the
case before it. Consequently, Occupy continues, the district court’s decision is not
a final decision and, therefore, cannot be appealed to this court.
Section 1291 of the Judicial Code gives the courts of appeals jurisdiction
over “final decisions” of the district courts.11 We need not probe the margins of the
11
The statute provides that “[t]he courts of appeals (other than the United States Court of
Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the
district courts of the United States . . . except where a direct review may be had in the Supreme
Court.” 28 U.S.C. § 1291.
11
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case law defining the contours of this authority in order to adjudicate the issue
presented here.12 Our case law and the case law of the Supreme Court make it clear
that the district court renders a final judgment when the court adjudicates the case
in a manner that leaves nothing more for it to do but to enter judgment.13 The
correctness of the district court’s disposition is not relevant to this determination.14
12
For exceptions to the ordinary finality rule, see 15B Charles Alan Wright et al., Federal
Practice and Procedure § 3914.28 (2d ed. 1991 & Supp. 2013) (discussing finality of summary
judgment orders); 15A id. § 3911 (discussing collateral orders); id. § 3911.1 (discussing how to
determine the finality of a collateral order); id. § 3912 (discussing death knell orders); id. § 3913
(discussing pragmatic finality and noting that “[t]he several expandable theories that can be used
to elaborate and qualify the requirement of finality under § 1291 are still growing, and must be
confined with constant vigilance”).
13
Ray Haluch Gravel Co. v. Cent. Pension Fund of the Int’l Union of Operating Eng’rs
& Participating Emp’rs, 134 S. Ct. 773, 779, 187 L. Ed. 2d 669 (2014) (“In the ordinary course a
‘final decision’ is one that ends the litigation on the merits and leaves nothing for the court to do
but execute the judgment.”); FirsTier Mortg. Co. v. Investors Mortg. Ins. Co., 498 U.S. 269, 272-
74, 277, 111 S. Ct. 648, 651-53, 112 L. Ed. 2d 743 (1991) (declining to decide that a bench
ruling deciding all claims was not a final order); In re Celotex Corp., 700 F.3d 1262, 1265 (11th
Cir. 2012) (per curiam) (“A final judgment or order is ‘one which ends the litigation on the
merits and leaves nothing for the court to do but execute the judgment.’” (quoting Catlin v.
United States, 324 U.S. 229, 233, 65 S. Ct. 631, 633, 89 L. Ed. 911 (1945))); see also Martinez v.
Carnival Corp., 744 F.3d 1240, 1243-44 (11th Cir. 2014) (noting that the Supreme Court and the
Eleventh Circuit have “adopted a functional test for finality, examining what the district court has
done,” and that “[w]hat matters is whether the case, in all practicality, is finished”); Moya v.
Schollenbarger, 465 F.3d 444, 450 (10th Cir. 2006) (stating that even an ambiguous order may be
final when the order “evidences an inten[t] to extinguish the plaintiff’s cause of action” and “if a
district court order expressly and unambiguously dismisses a plaintiff’s entire action, that order is
final and appealable” (alteration in original) (internal quotation marks omitted)); cf. Grayson v. K
Mart Corp., 79 F.3d 1086, 1094-95 (11th Cir. 1996) (determining that an order “fashioned to be
an appealable order . . . was in effect non-final” because the district court dismissed claims
without prejudice so that they could be transferred).
14
See 15A Charles Alan Wright et al., Federal Practice and Procedure § 3914.6 (2d ed.
1991 & Supp. 2013) (“Jurisdiction is not destroyed by the fact that the dismissal was
procedurally or substantively wrong; the remedy for the error is reversal, not dismissal of the
appeal.”).
12
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It suffices that the court decided the issues before it in a manner that makes clear
that the court had disposed of the case completely.15
Here, it is clear that the district court disposed of the case completely. It first
adjudicated on the merits the one issue that it believed dispositive of all the
plaintiffs’ claims. It then proceeded to explain why a merits-based adjudication of
the remaining counts was not necessary and, in its view, would amount to a
gratuitous pronouncement. It then entered judgment disposing of the entire case.
There is no doubt that the district court adjudicated the entire case. Nothing further
was left to be done.
Accordingly, we are satisfied that our jurisdiction is secure, and we proceed
to the merits.
B.
At the outset, it is important to note that Occupy makes no substantive
argument that the district court erred in its determination that Occupy had failed to
prove its selective enforcement allegation with respect to the Tent Ordinance.
Occupy therefore has waived any claim of error on this issue, and we affirm the
15
See Rutan v. Republican Party of Ill., 868 F.2d 943, 947 (7th Cir. 1989) (holding that
even though a district court erroneously failed to address a class action issue it still issued a final
order when it dismissed the suit because it left nothing to be decided), aff’d in part and rev’d in
part on other grounds, 497 U.S. 62, 110 S. Ct. 2729, 111 L. Ed. 2d 52 (1990).
13
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district court’s judgment with respect to the selective enforcement claim.
The district court’s other determination—that a merits adjudication of the
remaining counts is unnecessary because the court could render no relief that
would permit Occupy to demonstrate by pitching tents—is more problematic. Our
study of the case, with the assistance of counsel through briefs and at oral
argument, convinces us that Occupy’s complaint does seek judicial relief on these
counts that is not tethered to Occupy’s desire to pitch tents on city property. The
pitching of tents on city property was no doubt of significant importance to
Occupy. Nevertheless, it also asks the court to declare that Occupy has “a right to
protest 24 hours a day on public sidewalks, including the interior sidewalks of
City Hall.”16 It also seeks a declaration that Occupy has a “right to march without
permits.”17 The request for this relief is grounded in the specific allegations in the
complaint concerning alternate activity other than tenting in which Occupy wished
to engage but that, allegedly, had been impeded by the City. For instance, when a
state court declined to grant temporary injunctive relief against an eviction notice
to the encampment, Occupy undertook, as an alternate form of protest, “a reduced
round-the-clock presence on the sidewalks at City Hall, despite the discomfort and
16
R.24 at 28.
17
Id.
14
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difficulties posed by the weather.”18 This attempt resulted, according to the
allegations of the complaint, in several disputes as to the definition of “sidewalk”
—disputes that allegedly were designed to “harass, intimidate, confuse, and injure
the protestors’ first amendment rights and serve[d] to place them in a position of
not being able to determine whether they w[ould] be subject to arrest or not.”19 The
complaint further alleges that “two individuals who were on the sidewalk located
at the north lawn of City Hall were arrested for trespassing.”20
Other relief sought in the complaint also appears to seek redress that is not
related directly to Occupy’s desire to place tents on city property. For instance,
Occupy asked for a declaration that the north lawn of City Hall was a public forum
and not a city park subject to park regulations and that Occupy has a right to
protest there twenty-four hours a day.21
Occupy also made it clear in its memorandum in support of its amended
motion for summary judgment that:
There are two distinct categories of speech at issue in this case.
The first category is the pure core political speech, including the
18
Id. at 11.
19
Id. at 14.
20
Id. at 15.
21
Id. at 28.
15
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political signs, utterances, assemblies, rallies, marches, and literature
that Plaintiffs had and exercised while Occupy Pensacola was taking
place. . . .
The second category of speech involves symbolic political
speech and has two discrete and distinct parts which require
individual findings by this Court: 1) tents, and 2) sleeping.[22]
Occupy thus made it clear that its case was not solely dependent on its asserted
right to use tents on city property, but also involved its asserted right to engage in
other communicative activities on that property. This same distinction had been
made earlier in Occupy’s opposition to the City’s motion for judgment on the
pleadings.23
C.
Based on this study of the record, and aided by the briefs and oral
presentation of counsel, we must conclude that, putting aside its arguments
concerning tenting as symbolic speech, Occupy has raised and preserved
adequately allegations that its core First Amendment rights have been violated. On
remand, the district court must address these arguments. We think it also
appropriate for that court to address in the first instance any questions of standing
with respect to these allegations. Of course, we express no opinion on the merits
22
R.98 at 7-8.
23
R.49 at 5-6.
16
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of any of these matters.
Conclusion
For the reasons stated in this opinion, the judgment of the district court is
affirmed with respect to its holding that Occupy has failed to establish its claim of
selective enforcement of the Tent Ordinance of the City of Pensacola. The
remainder of the district court’s judgment is vacated, and the case is remanded for
further proceedings consistent with this opinion. Occupy may recover its costs in
this court.
AFFIRMED IN PART, VACATED IN PART, and REMANDED.
17