Harris v. Mexican Specialty Foods, Inc.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-13510 APRIL 9, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 07-01930-CV-AR-S

BOBBIE HARRIS, individually, and on
behalf of all others similarly situated,

Plaintiff-Appellant,

UNITED STATES OF AMERICA,

Intervenor-Plaintiff-Appellant,

versus

MEXICAN SPECIALTY FOODS, INC.,
d.b.a. La Paz Restaurante & Cantina,

Defendant-Appellee.

________________________

No. 08-13616
________________________

D. C. Docket No. 07-01397-CV-AR-S
JULIE BEST GRIMES,
individually and as representative of
all other persons similarly situated,

Plaintiff-Appellant,

NIMROD W.E. LONG, III, et al.,

Plaintiffs,

UNITED STATES OF AMERICA,

Intervenor-Plaintiff-Appellant.

versus

RAVE MOTION PICTURES BIRMINGHAM, LLC,
RAVE MOTION PICTURES BIRMINGHAM, II, LLC,
RAVE MOTION PICTURES BIRMINGHAM, III, LLC,
Delaware limited liability companies,
d.b.a. Rave Motion Pictures,
RAVE REVIEWS CINEMAS, LLC,
a Delaware limited liability company,
BOSTON VENTURES LP,
a Delaware limited partnership,

Defendants-Appellees.

________________________

Appeals from the United States District Court
for the Northern District of Alabama
_________________________

(April 9, 2009)

2
Before EDMONDSON, Chief Judge, DUBINA and KRAVITCH, Circuit Judges.

KRAVITCH, Circuit Judge:

In this case we consider the constitutionality of the statutory-damages

provision found in § 616(a)(1)(A) of the Fair Credit Reporting Act (“FCRA”), 15

U.S.C. § 1681, et seq. The district court, finding that the statutory-damages

provision is unconstitutionally vague and excessive, dismissed the complaints with

prejudice. For the reasons stated below, we vacate the rulings of the district court

and remand for further proceedings.

I. BACKGROUND

A. The FCRA

The FCRA endeavors to “ensure fair and accurate credit reporting, promote

efficiency in the banking system, and protect consumer privacy,” Safeco Ins. Co.

of America v. Burr, 551 U.S. 47, __, 127 S. Ct. 2201, 2205 (2007), by, among

other things, compelling merchants to adopt procedures to safeguard consumers’

credit information. See 15 U.S.C. § 1681(b). In 2003, Congress passed the Fair

and Accurate Credit Transactions Act (“FACTA”), Pub. L. No. 108-159, 117 Stat.

1952 (2003) (codified at 15 U.S.C. § 1681c(g)), amending the FCRA. FACTA,

which is aimed at protecting consumers from identity theft, provides that “no

person that accepts credit cards or debit cards for the transaction of business shall

3
print more than the last 5 digits of the card number or the expiration date upon any

receipt provided to the cardholder at the point of the sale or transaction.”

15 U.S.C. § 1681c(g)(1).1

As part of its framework, the FCRA authorizes consumers to bring private

suits for willful violations of its terms.2 Originally, the FCRA provided actual and

punitive damages for willful violations. 15 U.S.C. § 1681n(1)-(2) (1970). In

1996, Congress amended this section, adding that victims of willful violations

could receive “any actual damages sustained by the consumer as a result of the

failure or [statutory] damages of not less than $100 and not more than $1,000.”

Pub L. No. 104-208, Div. A, Title II, Subtitle D, 2412(b), 110 Stat. 3009-446

(1996) (codified at 15 U.S.C. § 1681n(a)(1)(A)) (emphasis added). In addition, the

FCRA still allows victims of willful violations to receive punitive damages. See

15 U.S.C. § 1681n(a)(2).

The FCRA was further amended by the Credit and Debit Card Receipt

Clarification Act of 2007 (“Clarification Act”), Pub. L. No. 110-241, 122 Stat.

1
This provision applies to electronically-generated customer receipts, not those made by
handwriting or imprinting a copy of the card. 15 U.S.C. § 1681c(g)(2). To provide merchants
with an opportunity to become FACTA-compliant, the law did not go into effect until January 1,
2005 for new credit card receipt printers and December 4, 2006 for printers in use prior to
January 1, 2005. 15 U.S.C. § 1681c(g)(3).
2
The FCRA also imposes liability for negligent violations, see 15 U.S.C. § 1681o(a), but
that provision is not at issue in this appeal.

4
1565 (2008) (codified at 15 U.S.C. § 1681n(d)), which was signed into law on

June 3, 2008 – just a few days after the district court’s decision in the instant case.

The Clarification Act applies to transactions that took place between December 4,

2004, and June 3, 2008, exempting merchants from liability for willful violations

of the FCRA in cases where the merchant printed credit card expiration dates on

customer receipts, but “otherwise complied” with FACTA. Id. The Clarification

Act applies retroactively to all cases pending as of the time of its enactment. Id.

This means that to recover for willful FACTA violations that occurred prior to the

enactment of the Clarification Act, a customer must prove that the merchant

printed more than the last five digits of the customer’s card number on an

electronically-generated receipt. Simply proving that the expiration date was

printed will not suffice.

B. Procedural History

Plaintiff-Appellants Bobbie Harris and Julie Best Grimes (collectively “the

plaintiffs”) filed separate cases in district court against Defendant-Appellees

Mexican Specialty Foods, Inc. (“Mexican Speciality Foods”) and Rave Motion

Pictures, Birmingham, LLC,3 respectively (collectively “the defendants”), alleging

that the defendants willfully violated FACTA, and seeking statutory damages,

3
Grimes’ complaint also names a number of entities doing business as or related to Rave
Motion Pictures.

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punitive damages, costs of suit, and attorney’s fees, pursuant to 15 U.S.C.

§ 1681n(a). The plaintiffs’ complaints also seek class certification on behalf of

themselves and all other persons similarly situated, pursuant to Rule 23 of the

Federal Rules of Civil Procedure. The proposed classes include every customer

who engaged in a credit or debit card transaction with one of the defendants after

the date FACTA became effective and whose electronically-generated receipt

included more than the last five digits of the customer’s card number and/or its

expiration date.4

The defendants filed motions for summary judgment, alleging that the

FCRA’s statutory-damages provision is unconstitutional. The United States (“the

government”) intervened as a plaintiff pursuant to 28 U.S.C. § 2403(a) to defend

the constitutionality of the statute.

The district court issued a single order declaring the FCRA’s statutory-

damages provision unconstitutionally vague on its face and unconstitutionally

excessive on its face and as applied to the defendants, in violation of the Fifth

Amendment Due Process Clause.5 The claims were dismissed with prejudice. The

4
As noted above, the complaints were filed prior to the enactment of the Clarification
Act, which is why the putative classes include individuals whose electronically-generated
receipts contained their card expiration dates, but not more than five digits of their card numbers.
5
Because the district court did not expressly delineate between its facial and as-applied
analyses, some of the parties’ briefs conduct facial and as-applied analyses for both the
vagueness and excessiveness issues. Upon thorough review of the district court’s opinion, we

6
plaintiffs appealed and we consolidated the cases.6 For the reasons stated below,

we conclude that: (1) the merits of the as-applied excessiveness challenge are not

ripe for adjudication; (2) the statute is not unconstitutionally vague on its face; and

(3) the statute is not unconstitutionally excessive on its face. We therefore vacate

the district court’s order and remand for further proceedings.

II. STANDARD OF REVIEW

We review de novo questions concerning our subject matter jurisdiction,

including ripeness. Elend v. Basham, 471 F.3d 1199, 1204 (11th Cir. 2006). We

review the constitutionality of a challenged statute de novo. Konikov v. Orange

County, Fla., 410 F.3d 1317, 1321 (11th Cir. 2005).

III. DISCUSSION

A. Ripeness

We first address whether the instant case is ripe for adjudication. Ripeness

doctrine “originate[s] from the Constitution’s Article III requirement that the

jurisdiction of the federal courts be limited to actual cases and controversies.”

Elend, 471 F.3d at 1204-05. For a court to have jurisdiction, the claim must be

conclude that the court did not find the statute unconstitutionally vague as applied. The
vagueness section only addresses alleged deficiencies in the statute itself, not in its application to
these particular defendants. We, therefore, do not discuss the vagueness as-applied arguments.
6
Two other cases were also included in the district court’s order, but are not involved in
the instant appeal.

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“sufficiently mature, and the issues sufficiently defined and concrete, to permit

effective decisionmaking by the court.” Cheffer v. Reno, 55 F.3d 1517, 1524 (11th

Cir. 1995). “The ripeness doctrine protects federal courts from engaging in

speculation or wasting their resources through the review of potential or abstract

disputes.” Digital Props., Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir.

1997). “A claim is not ripe for adjudication if it rests upon contingent future

events that may not occur as anticipated, or indeed may not occur at all.” Texas v.

United States, 523 U.S. 296, 300 (1998) (internal quotation marks omitted).

Because the question of ripeness depends on the timing of the adjudication

of a particular issue, see Atlanta Gas Light Co. v. Fed. Energy Regulatory

Comm’n, 140 F.3d 1392, 1403-04 (11th Cir. 1998), it applies differently to facial

and as-applied challenges. A facial challenge asserts that a law “always operates

unconstitutionally,” B LACK’S L AW D ICTIONARY 223 (7th ed. 1999) (emphasis

added); therefore, a facial challenge will succeed only if the statute “could never be

applied in a constitutional manner.” DA Mortgage, Inc. v. City of Miami Beach,

486 F.3d 1254, 1262 (11th Cir. 2007). In the context of a facial challenge, a purely

legal claim is presumptively ripe for judicial review because it does not require a

developed factual record. See Nat’l Treasury Employees Union v. Chertoff, 452

F.3d 839, 854-55 (D.C. Cir. 2006); Solantic, LLC v. City of Neptune Beach, 410

8
F.3d 1250, 1274 (11th Cir. 2005); Roe No. 2 v. Ogden, 253 F.3d 1225, 1232 (10th

Cir. 2001). An as-applied challenge, by contrast, addresses whether “a statute is

unconstitutional on the facts of a particular case or to a particular party.” B LACK’S

L AW D ICTIONARY at 223. Because such a challenge asserts that a statute cannot be

constitutionally applied in particular circumstances, it necessarily requires the

development of a factual record for the court to consider. See Siegel v. LePore,

234 F.3d 1163, 1171 (11th Cir. 2000).

In the instant case, the defendants’ facial challenges to the FCRA are

sufficiently ripe for adjudication. The district court found that the statute provides

no guidance for juries in determining whether to award damages at the upper or

lower end of the $100 to $1,000 statutory-damages range. As such, it always

leaves damages “to the whim of the jury” and permits inconsistent, “willy nilly”

verdicts. The district court concluded that these attributes render § 616(a)(1)(A)

unconstitutionally vague. Moreover, the court found that because § 616(a)(1)(A)’s

statutory-damages provision is “expressly not compensatory in nature,” its verdicts

will always be unconstitutionally excessive. Although the district court issued its

order prior to trial, we may consider the merits of its two facial rulings because

they do not require a detailed examination of the facts of the instant case.

The as-applied excessiveness challenge is more problematic. When a

9
damages award is punitive in nature, it is subject to constitutional excessiveness

review. See Johansen v. Combustion Eng’g, Inc., 170 F.3d 1320, 1334 (11th Cir.

1999). Typically, excessiveness review occurs after a jury has delivered a damages

award. See, e.g., State Farm Mut. Ins. Co. v. Campbell, 538 U.S. 408 (2003)

(finding that the jury’s punitive damages award of $145 million was

unconstitutionally excessive); Action Marine, Inc. v. Cont’l Carbon Inc., 481 F.3d

1302 (11th Cir. 2007) (upholding a jury’s punitive damages award of

$17,500,000); Kemp v. Am. Tel. & Tel. Co., 393 F.3d 1354 (11th Cir. 2004)

(reducing a jury’s punitive damages award of $1,000,000 to $250,000). In its pre-

trial order, however, the district court employed a series of assumptions and found

that, based on these assumptions, any verdict awarded by the jury would

necessarily be unconstitutionally excessive. The court assumed that: (1) the

defendants would not oppose class certification; (2) in each case, the class would

be certified and would include all individuals proposed by the plaintiffs; (3) none

of the plaintiffs suffered any actual harm; and (4) the plaintiffs would prove that

the defendants willfully violated the FCRA and would thus each be entitled to at

least $100 in statutory damages. The district court applied these assumptions and

found that upon proving liability, the plaintiffs would be entitled to monetary

awards that would be grossly disproportionate to the harm caused, and that the

10
award would likely bankrupt the defendants. The court found that remittitur would

be unavailable because the FCRA guarantees between $100 and $1,000 per

violation, thus stripping courts of discretion to reduce the verdict below $100 per

violation. Based on these grounds, the district court found that the FCRA would

impose an unconstitutionally excessive penalty when applied to the defendants.

We conclude that the district court erred in ruling on the as-applied

excessiveness challenge because many of the court’s assumptions required the

resolution of issues which are directly disputed. First, the assumption that the

defendants would not oppose class certification is belied by the record. There is no

evidence in the record to support the district court’s assumption “that none of these

defendants will continue to resist class treatment if they do not get from this court

and the reviewing courts, a declaration that this statute, insofar as it applies to these

defendants, is unconstitutional.” In fact, prior to the district court granting

summary judgment, Mexican Specialty Foods filed a motion entitled, “Motion for

Summary Judgment and [to] Strike Class Allegations,” (emphasis added), which

included a section arguing that, in this case, the class action device fails to satisfy

the “superiority” requirement of Rule 23 of the Federal Rules of Civil Procedure.

The district court did not rule on this aspect of the motion.

Second, it is not yet clear at this early stage in the proceedings whether the

11
district court’s assumption that none of the proposed class members suffered any

actual damages is correct. Neither the FCRA, nor the plaintiffs’ proposed classes,

limit recovery of statutory damages to those individuals who did not suffer actual

damages. The district court assumed that because the plaintiffs seek statutory

damages, they and the members of the putative classes did not suffer harm. This

court has recognized that even though statutory damages may be used in cases

where no actual damages were incurred, they are also often employed where

damages are “difficult or impossible to calculate.” Cable/Home Commc’n Corp. v.

Network Prod., Inc., 902 F.2d 829, 850 (11th Cir. 1990). Thus, it is possible that

members of the proposed classes have suffered actual harm, but that such harm is

small or difficult to calculate.

Finally, the district court engaged in impermissible speculation when it

assumed that the plaintiffs would successfully prove that the defendants willfully

violated the FCRA. A violation is “willful” for the purposes of the FCRA if the

defendant violates the terms of the Act with knowledge or reckless disregard for

the law. Safeco, 127 S. Ct. at 2210. The defendants’ briefs concede that some

receipts were printed with more than five credit card numbers on them, but dispute

whether the violations were committed willfully. It was therefore inappropriate for

the district court to assume that willfulness would be proven and that each class

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member would receive at least $100 in statutory damages.

Once the district court’s assumptions are removed, the as-applied

excessiveness challenge is not ripe. At this stage in the proceedings it is

impossible to know whether the classes will be certified, how many individuals

will be included in each class, whether they will prove willfulness, and the size of

the ultimate verdicts. The district court therefore lacked jurisdiction to consider

whether the FCRA’s statutory-damages provision is punitive and will yield

unconstitutionally excessive verdicts when applied to these defendants.

We conclude, however, that the facial constitutional challenges are ripe for

adjudication, although the as-applied challenge is not. We therefore analyze the

facial challenges below.

B. Facial Vagueness

The district court reasoned that the absence of criteria for assessing the

appropriate amount of damages within § 616(a)(1)(A)’s statutory-damages range

renders the section unconstitutionally vague. The court reasoned that without

statutory criteria, it is impossible for a judge to adequately charge a jury on where

an award should fall within the $100 to $1,000 range. The court concluded that

this problem renders the FCRA’s statutory-damages provision unconstitutionally

vague, in violation of due process.

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 Due process requires “that the law must be one that carries an

understandable meaning with legal standards that courts must enforce.” Giaccio v.

State of Pa., 382 U.S. 399, 403 (1966). “The void-for-vagueness doctrine reflects

the principle that ‘a statute which either forbids or requires the doing of an act in

terms so vague that [persons] of common intelligence must necessarily guess at its

meaning and differ as to its application, violates the first essential of due process of

law.’” Roberts v. U.S. Jaycees, 468 U.S. 609, 629 (1984) (quoting Connally v.

Gen. Constr. Co., 269 U.S. 385, 391 (1926)). The Supreme Court has warned

against the mechanical application of vagueness doctrine, emphasizing that an

“economic regulation is subject to a less strict vagueness test” and there should be

“greater tolerance of enactments with civil rather than criminal penalties because

the consequences of imprecision are qualitatively less severe.” Vill. of Hoffman

Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982); see Trans

Union Corp. v. Fed. Trade Comm’n, 245 F.3d 809, 817 (D.C. Cir. 2001)

(“[B]ecause the FCRA’s regulation of consumer reporting agencies is economic, it

is subject to ‘a less strict vagueness test.’”).

Vagueness within statutes is impermissible because such statutes fail to put

potential violators on notice that certain conduct is prohibited, inform them of the

potential penalties that accompany noncompliance, and provide explicit standards

14
for those who apply the law. See Grayned v. City of Rockford, 408 U.S. 104, 108-

09 (1972). “It is established that a law fails to meet the requirements of the Due

Process Clause if it is so vague and standardless that it leaves the public uncertain

as to the conduct it prohibits or leaves judges and jurors free to decide, without any

legally fixed standards, what is prohibited and what is not in each particular case.”

Giaccio, 382 U.S. at 402-03.

At the outset, we recognize that statutory-damages ranges are not unique to

the FCRA. The Copyright Act of 1976, 17 U.S.C. § 101, et seq., and the

Communications Act of 1934, 47 U.S.C. § 151, et seq., both contain larger

statutory-damages ranges than does the FCRA. The Copyright Act provides a

statutory-damages range of $750 to $30,000, and, where the violation is committed

willfully, the award may be increased up to $150,000. 17 U.S.C. § 504(c). The

Communications Act permits plaintiffs to recover from $1,000 to $10,000 for each

violation of the Act, and from $10,000 to $100,000 where the violation is willful

and committed for commercial advantage or financial gain. 47 U.S.C.

§ 605(e)(3)(C).7 The FCRA’s statutory-damages scheme contains a smaller range

7
Although we are not aware of any cases addressing facial vagueness challenges to the
Copyright or Communications Acts’ use of statutory-damages ranges, we note that the Supreme
Court has had cause to address the Copyright Act’s statutory-damages provision and noted that
statutory-damages ranges have been utilized throughout American history. See Feltner v.
Columbia Pictures Television, Inc., 523 U.S. 340, 351 (1998) (noting that “three of the state
[copyright] statutes [predating the Constitution] specifically authorized an award of damages
from a statutory range, just as § 504(c) does today”).

15
starting at $100 per violation, with liability for a single violation capped at $1,000.

The defendants in the instant case do not argue that statutory-damages

ranges are categorically impermissible, but rather that the absence of criteria to aid

juries in determining the appropriate amount of statutory damages within the $100

to $1,000 range renders the FCRA unconstitutionally vague because it:

(1) deprives potential defendants of notice of the consequences of violating the

FCRA; and (2) results in arbitrarily-assessed damages awards. We disagree.8

First, potential defendants have notice of the consequences of violating the

FCRA because it clearly defines what conduct is prohibited and the potential range

of fine that accompanies noncompliance. In United States v. Batchelder, 442 U.S.

114 (1979),9 the Supreme Court held that although two statutes contained different

8
The defendants argue that the Copyright and Communications Acts would be vague but
for the inclusion of the language “as the court considers just” in their statutory-damages sections.
See 17 U.S.C. § 504(c)(1) (“a sum of not less than $750 or more than $30,000, as the court
considers just”) (emphasis added); 47 U.S.C. § 605(e)(3)(C)(i)(II) (a sum of not less than $1,000
or more than $10,000, as the court considers just”) (emphasis added). The defendants reason
that this language cures the statutes’ vagueness by explicitly granting courts discretion to
develop factors for juries to use in determining the appropriate amount of statutory damages,
whereas this court lacks such authority when construing the FCRA. We need not discuss this
argument because we conclude that § 616(a)(1)(A) is not vague.
9
Batchelder was issued prior to the enactment of the Federal Sentencing Guidelines.
Although Batchelder involved a criminal conviction, making its facts distinguishable from the
present case, this court has recognized that greater due process protection is required in the
criminal context than in the civil context. See Carlucci v. Piper Aircraft Corp., Inc., 775 F.2d
1440, 1451 n.9 (11th Cir. 1985); see also Borden v. Sch. Dist. of Twp. of E. Brunswick, 523
F.3d 153, 167 (3d Cir. 2008) (“[I]t is important to note that, in the civil context, statutes need not
be as precise as in the criminal context and are, therefore, less likely to be invalidated under a
void-for-vagueness challenge.”). The due process protection required in the instant case is,
therefore, the same or less than what was required in Batchelder.

16
penalties for the same criminal conduct, the statutes were not unconstitutionally

vague. The Court concluded that although violators could not know which statute

they would be charged under, and thus what penalty would be imposed, “[s]o long

as overlapping criminal provisions clearly define the conduct prohibited and the

punishment authorized, the notice requirements of the Due Process Clause are

satisfied.” Id. at 115. In the present case, the defendants do not cite any vagueness

in the definition of the prohibited conduct. The statute gives potential defendants

notice that if they violate FACTA, they will be subject to penalties of $100 to

$1,000 per violation. We therefore conclude that the statute satisfies due process

by giving sufficient notice to potential violators.

Second, the statute does not provide so much discretion to juries as to render

their verdicts “arbitrary.” The Supreme Court, in interpreting a predecessor to the

Copyright Act, upheld a statutory-damages range, concluding that a verdict is

acceptable so long as it is “within the prescribed limitations, that is to say, neither

more than the maximum nor less than the minimum.” F. W. Woolworth Co. v.

Contemporary Arts, Inc., 344 U.S. 228, 232 (1952). In order to be

unconstitutionally vague, a statute must go beyond simply granting some discretion

to courts or juries to act within a range; it must “impermissibly delegate[] basic

policy matters to policemen, judges, and juries for resolution on an ad hoc and

17
subjective basis, with the attendant dangers of arbitrary and discriminatory

application.” Grayned, 408 U.S. at 108-09. The statute at issue in the present case

grants no such unfettered discretion, as it clearly limits juries’ discretion by

mandating that statutory damages must reside between $100 and $1,000. Juries are

not impermissibly asked to perform a legislative function because their valuation

of harm is limited to a narrow, statutorily-established range. The mere potential

for disuniform verdicts is not enough to create a constitutional infirmity.

We therefore conclude that § 616(a)(1)(A) is not unconstitutionally vague on

its face.

C. Facial Excessiveness

Finally, the district court found § 616(a)(1)(A) unconstitutionally excessive

on its face because the statutory-damages provision is “expressly not compensatory

in nature.” The district court concluded that this renders the statute punitive in

nature and it therefore applied the constitutional excessiveness review found in St.

Louis Iron Mountain & S. R.R. Co. v. Williams, 251 U.S. 63 (1919). According to

the district court, because only litigants that have not suffered any actual harm will

avail themselves of statutory damages under § 616(a)(1)(A), these damages will

always be unconstitutionally excessive when compared to the actual harm caused

by the violator’s actions.

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 We disagree with the district court that the FCRA’s statutory-damages

provision is punitive in nature. Prior to the 1996 amendment to FCRA, the statute

permitted victims of willful violations to obtain actual and punitive damages. The

current version of FCRA provides that plaintiffs may elect to receive actual

damages or statutory damages, but not both, and in addition maintains the punitive

damages provision. 15 U.S.C. § 1681n(a). Because the FCRA already contains a

punitive damages provision and specifies that statutory damages may only be

awarded in lieu of actual damages, the district court erred in concluding that the

statutory damages provision is tantamount to a punitive damages provision.

Moreover, even if the statutory damages provision could be construed as

punitive, the district court still erred in ruling that § 616(a)(1)(A) always yields

unconstitutionally excessive verdicts. As discussed above, see supra § III.B, the

FCRA does not forbid individuals who suffered actual harm from seeking statutory

damages. Even if none of the plaintiffs in the instant case were actually harmed, it

is conceivable that in the future a party with actual harm that is difficult to compute

will bring a case seeking statutory damages. In such a case, the actual harm might

be very close to the statutory damages. This mere possibility of a constitutional

application is enough to defeat a facial challenge to the statute. See High Ol’

Times, Inc. v. Busbee, 673 F.2d 1225, 1228 (11th Cir. 1982) (holding that to be

19
facially unconstitutional, the statute must be unconstitutional “in all of its

applications . . . [T]he possibility of a valid application necessarily precludes facial

invalidity.”).

As such, the district court erred in engaging in constitutional excessiveness

review and in finding § 616(a)(1)(A) unconstitutionally excessive on its face.

IV. CONCLUSION

We conclude that the district court erred in considering the merits of the as-

applied excessiveness challenge before it was ripe and also in holding that the

statute is unconstitutionally vague and excessive on its face. We therefore vacate

the district court’s orders granting summary judgment in favor of the defendants

and dismissing the actions with prejudice, and remand for further proceedings

consistent with this opinion.

VACATED AND REMANDED.

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