SUNDAY DA SKAL EA, et al. ,

Plaintiffs,

v. WASHI NGTONHUMANE SOCI ETY, et al. , Def endants. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 03-2074 ( CKK)

MEMORAN DUM OP INION (May 2, 2010) Plaintiffs are se lf-desc ribed pe t owners in the District of Columbi a who a lleg e that their pets wer e seized, deta ined, and da mag ed by Def endants without due proc ess of the la w. Presently at issue is Plainti ffs’ a lleg ation in Count I I of their Ame nded Complaint that the District of Columbia’s Fr eedom f rom Cruelty

to Animal Protection Act, D.C. Code § 22-1001 et seq. (her einaf

ter, the “ Act”) , is facia lly unconstitutional because it fails to provide animal owne rs with a meaning ful right to contest the seizure, dete ntion, and terms of re lease of their pe ts, prior to final ac tion. The cha lleng ed provisions of the Ac t, however , wer e re cently amende d (subseque nt to the filing of Plaintiffs’ la wsuit) by passag e of D .C. Act 17-493, entitled the “Animal Protec tion Amendment Act of 2008” (her einaf ter, the “ 2008 Amendment”) . The Court there fore order ed the pa

rties to submit suppl emental br iefingaddre ssing the impac t of the re cent amendments to the Ac t on Plainti ffs’ f acia l challeng e and, spe cifica lly , whether Plaintiffs’ claim of fa cial unconstitutionality is now moot. The parties ha ve since filed the re quired brie fing , and the Court is now tasked with deter mining whe ther Plaintiffs’ fa cial cha lleng e is moot in li g ht of the new le g islation. Upon consideration of the parties’ supplemental memora nda, re levant ca selaw, statutory and re g ulatory

authority , as we ll as the rec ord of this ca se as a whole, the Court finds that Plaintiffs’ fac ial challeng e to the constitutionality of the Ac t has in fac t been r ender ed moot by the 2008 Amendment. Ac cording ly , for the r easons se t forth below, the Court sha ll DI SMI SS C ount I Iof the Ame nded Complaint as MOOT insofar as it asserts a

fac ial challeng e to the constitutionality

of the Ac t. I. BACKG ROUND The Court assumes f

amiliarity with the fac tual background of this ca se, which is set for th in detail in this C ourt’s pre vious opinions and is i ncorpor ated he rein. See D askalea v

. W ashington Humane Socie ty , 577 F. Supp. 2d 82 (D.D .C. 2008) (her einaf ter, “ Daskalea I

”); Daske lea v. W

ashington Humane Socie ty , 577 F. Supp. 90 (D.D .C. 2008). Acc ording ly , the Court addre sses only

such fa cts as ar e nec essar y for r esolution of the issues curr ently befor e the Court. Plaintiffs Sunday

Daska lea, F ranc es Norris, and Wil lie J ackson a lleg e that they “ar e pet

owner s in the District of Columbia who have ha d their pets seized, deta ined and da mag ed without due proce ss of law.” Am. Compl. ¶ 1. Pl aintiffs’ Ame nded Complaint names as Def endants the D istrict of Columbia (here inafter , “D.C.” or the “District” ); J ody

Hucka by , individually

and in her

officia l capa city

as Executive Dire ctor of the Washington Humane Society (“WHS”); Ada

m Parasca

ndola, individually

and in his officia l capa city as Dire ctor of L aw Enf orce ment for WHS; Sony a Scnoor, individually and in her

officia l capa city

as the WHS law enf orce ment office r who seized and de tained Ms. Daska lea’ s dog ; Rosemary Vozobule, individually

and in her

officia l capa city

as a WHS law enf

orce ment office r who re fused to re turn Ms. Daskale a’s dog ; L indsay Gar dewin, individually

and in her

officia l capa city

as a WHS law

2enfor ceme nt office r who seized and r efuse d to return Mr. Jackson’s dog ; and H.O. B oozer,

individually

and in her

officia l capa city

as the WHS law enfor ceme nt office r who seized and ref used to retur

n Dr. Nor ris’s dog(collec tively , the “Individual Defe ndants”). 1 Plaintiffs’ Amended Complaint includes both constitutional challeng es to the Ac t and common law cla ims reg ardingthe alleg ed seizure, de tention, and damag ing of Plaintiffs’ pets. See ge nerally

Am. Compl. I n particula r, Count I I

alleg es that the Ac t is unconstitut ional on its fac e and a s customarily

enfor ced, a

nd Count I I Ialleg es that De fenda nts’ application of the Act to the individual Plainti ffs violated the ir due proc ess rig hts. Id. ¶¶ 75- 80. Both Counts I Iand I I I

rema in ext ant at this time. As expl ained a bove, this Memorandum Opinion foc uses solely on Plaintiffs’ fac ial challeng e to the constitutionality of the Ac t as set forth in Count I Iof the Amended Complaint. Specifica lly , Plaintiffs contend that the Ac t “is unconstitutional because as written . . . it fails to provide a

nimal owners with a me aning ful rig ht to contest the seizure, dete ntion, and terms of re lease of their pe ts, prior [to] final ac tion which perma nently aff ects a pet owner ’s Plaintiffs’ Amended Complaint orig inally named the Washing ton Humane Society as a 1 Def endant in this action as we ll. W HS, however , is no longe r a de fenda nt in this action, as Judge J ohn Gar rett Penn — to whom this case w as pre viously assig ned — dete rmined that WHS is non sui juris and ther efor e g rante d WHS’ mot ion to dism iss Pl aintiffs’ Ame nded Complaint as ag ainst WHS

. See Daskalea v . W ashington Humane Socie ty , 480 F. Supp. 2d 16, 22-24 (D .D.C. 2007). In addition, Plainti ffs’ A mended Complaint names as de fenda nts J ohn Does 1-10, who are alleg ed WHS law enfor ceme nt office rs, direc tors, and or me mbers “whose identities are prese ntly unknown to plaintiffs, and who illeg ally seized and deta ined the pets of the plaintiff class.” A m. Compl . ¶ 17. Plaintiffs Daska lea, Nor ris, and Jackson bringtheir Amende d Complaint on t heir own be half a nd on behalf

of an a lleg ed cla ss of “similarly situated pet owne rs living in the District of Colombia, and those pe rsons who ar e not re sidents of the District, but who have had their a

nimals seized by

defe ndants, on or af

ter August 4, 2000,” the date of the Act’s e nactment. Am. Compl. ¶ 142. Plaintiff’s Motion for Class Certification, filed May 28, 2004, has bee n held in abeyance pendingresolution of the pa rties’ motions with respec t to Plaintiffs’ fac ial challeng e. See11/20/07 Order, D ocket No. [49]. 3rig hts.” Id. ¶ 75. Plaintiffs focus on D.C. Code § 22- 1004, which is entitled “Ar rests without

war rant a uthorized; noti ce to owne r.” A t the time the Plaintiffs’ lawsuit was filed a nd the complained- of eve nts alleg edly occur red, se ction 22-1004 consisted of the following two para g raphs — ( a) & (b) — r eprinted in full below: (a ) An y p er s on found violating the laws in rela tion to crue lty to animals may b e arr ested and held without a war rant

. . . . The person making the arr est or the humane office r taking possession of an animal shall have a lie n o n s ai d animals for the expense of such c are and provisions. (b)( 1) A humane office r of the Washington Humane Society may take possession of any animal to protec t it from neg lect or crue lty

. The person taking possession of the animal or animals, shall use rea sonable diligenc e to g ive notice there of to the owner of animals found in the c harg e or c ustody of [a] person arr ested, a

nd shall proper ly car e for the animals until the owner shall take char g e of the animals; provided that, the owner shall take charg e of the animals within 20 day s from the date of the notice. (2) I f the owner or custodian of the animal or animals fails to respond afte r 20 day s, the animal or animals shall become the proper ty of the Washington Humane Society and the Washing ton Humane Society shall have the authority

to: (A) Plac e the a

nimal or animals up for a doption in a suitable home; (B ) Retain the a

nimal or animals; or (C) Humane ly

destroy the animal or a

nimals. D.C. Code § 22-1004. Ba sed upon the statutory

languag e existi ngat the time of filing , Plaintiffs alleg e that the Act is unconstitutional on its fac e bec ause of “its complete fa ilure to provide notice and a meaning ful opportunity

for pe t owners to conte st the seizure, detention, terms of r elea se and treatment of their pets, a

nd the fe es and te rms associate d there with.” Am. Compl. ¶ 76. In particula r, Plaintiffs challeng e the Ac t’s alleg ed fa ilure to (1) establish rea so n ab l e an d articula ble standards for the seizure of pets; (2) to

4provide rea sonable notice and a meaning ful opportunity t o b e h ear d to contest the

seizure, detention, rele ase terms and treatment of pets; (3) to set rea so n ab l e an d articula ble standards for the rele ase of seized pets; (4) to preve nt involuntary medical treatment of pets; and (5) [t o preve nt] the imposit ion of arbitra ry and capr icious fines, penalties a

nd fee s. Id. ¶ 76. Plaintiffs init ially

moved for pa

rtial summary

judgme nt on their fac ial challeng e in late 2007, shortly

afte r the c ase w as re assig ned to this Court. SeePls.’ Mot. for Partial Summ. J ., Docke t No. [42] . The Court denie d that motion without prejudice , finding that the par ties’ briefingin connec tion with P laintiffs’ motion was “simply insufficient to allow the Court to resolve that question.” Daskalea I , 577 F. Supp. 2d at 83. Plaintiffs wer e g rante d leave to file a

rene wed pa

rtial motion for summary judgme nt on their fac ial challeng e, which the y did in September of

2008. SeePls.’ Renewed Mot. for Partial Summ. J . as to the F acia l Unconstitutionality

of Count I Iof the Am. Compl, Docket No. [64]. The motion was opposed by both the District and the Individual Defe ndants. As is releva nt here , in filing its Opposition to Plaintiffs’ motion, the District notified the Court for the fir st tim e that the D.C. Council had passed a nd the Mayor had sig ned D.C. Ac t 17-493, known as the “ Animal Protection Amendment Ac t of 2008.” SeeDistrict’s Opp’n, D ocket No. [65], at 2. The District explained that the 2008 Amendment, whic h was at that time pending be fore Congr ess as pa rt of the leg islative review

proce ss, amended D .C. Code § 22-1004 — i.e., the ve ry statutory provision upon which Plaintiffs’ fa cial cha lleng e foc uses. Id. at 2-3. Spec ifically , the 2008 Amendment, in releva nt part, adde d a new

substantive subsection (c ) to D.C. Code § 22-1004, as f ollows:

5(c) (1) The Mayor shall establish by rulemaking a notice and hear ing proce ss for the

owner of the animal to contest the seizure, detention, an d t er m s of rele ase and treatment of the animal, the a lleg ation of cr uelty , abandonme nt, or neg lect, and the imposit ion of the lien and c osts assessed for car ing a nd providing for the a

nimal. (2) Wit hin 30 day s of Dec ember 5, 2008, the proposed rules shall be submitt ed to the Council for a 45-day period of revie w, excluding wee kends, leg al holiday s, and day s of Council rec ess. I f the Council does not approve or disapprove of the proposed rules, by resolution, within the 45-day revie w period, the ru les shall be deeme d approve d. D.C. Code § 22-1004(c ). B ased on the passag e of the 2008 Amendment, the District a rgued that “Plaintiffs’ fa cial invalidity claims are now moot, beca use the Council has pa ssed new le g islation addre ssing the spe cific pr oblems alleg ed by plaintiffs.” District’s O pp’n, Doc ket No. [65] , at 4- 7. 2 Plaintiffs disagr eed, a rguing in Reply

that their fa cial cha lleng e to the Ac t had not been rende red moot by

the passag e of the 2008 Amendment. SeePls.’ Reply , Docke t No. [67] , at 2-4. Plaintiffs advanc ed two ar g uments in support of this posit ion. First, Plaintiffs argued that until the 2008 Amendment took ef fec t and until the implementing re g ulations were in fac t promulg ated a

nd approve d, the District could not demonstrate that the alleg ed violations were unlikely to rec ur. See id. at 2 (“ The interim eve nt relied upon by the District is the proposed

enac tment of the [2008 Amendment]. This statutory revision may , sometime in 2009, or later, become law. I f it does, the Mayor may beg in the proce ss of rulemaking , and constitutionally adequate proc edura l rules may emer g e. Howe ver, unle ss and until these eve nts happen, pe t

owner s are today , and for a conside rable period of time in the f uture, subjec t to denial of due

The Individual Defe ndants incorpor ated the D istrict’s argument on this pointin their 2 opposition t o Plaintiffs’ motion, which was filed se parately

. SeeIndiv. Def.’ s Mem. in Opp’n, Docke t No. [66] , at 2, n. 2. 6proce ss.”) (e mphasis in origina l). Second, Plaintiffs ar g ued that bec ause the ir suit requested

damag es as we ll as injunctive and dec laratory relief , Plaintiffs’ fac ial challeng e re mained viable. Id. at 3. Shortly afte r brief

ing on Plaintiffs’ r enew ed par tial motion for summary

judgme nt was complete, the D istrict filed a Notice advising the Court that the 2008 Amendment ha d survived Congr essional re view and ha d there fore become law, ef fec tive Dec ember

5, 2008. SeeDistrict’s Not., Docke t No. [68] . The District a lso advised that the Mayor had, pur suant to the newly amende d section 22-1004( c), submitted notice of emer g ency

and propose d rulemakingto the D.C. Council, setting for

th a “notice and hea

ringproce ss for the owne r of [a seized] animal.” See id. & A tt. 1 (copy

of Notice of Emer g ency

and Proposed Rulemaking ). The D istrict later notified the Court that those proposed r ules wer e appr oved by

the D.C. Council without any substantive modification on Marc h 3, 2009. See Status Report, Docket No. [69]; see also 56 D.C. Reg . 2104 (Mar . 3, 2009). The f

inal rules, which a

re nowcodified at D.C. Mun. Reg. tit. 24, § 1500 et seq. (2009), a mend Title 24 of the District of Columbi a Municipal Regulations to add a newchapte r, Chapter 15, e ntitled “Hea ringProcedur es for

Washington Humane Society .” As set f orth there in, “[t] he purpose of the[] rules is to establish a notice a nd hear ing pr ocess f

or the owne r of a

n animal seized pursuant to [D.C. Code § 22-1004(b)(1) ] . . . t o contest the seizure, de tention, and terms of re lease ; the treatment of the animal; any alleg ation of cr

uelty , abandonme nt, or neg lect; and the imposition of any lien and costs asse ssed for c aringand providingfor the a nimal.” D.C. Mun. Reg . tit. 24, § 1500.1. In light of this deve lopment, the Court issued an Orde r deny ing Plaintiffs’ r enew ed motion for partial summary judgme nt without prejudice a nd direc ting the pa

rties “to submit

7supplemental brief ing a ddressingwhether

Plaintiffs’ fac ial challeng e to the District’s a nimal

crue lty statute is now moot,” g iven that both the 2008 Amendment a nd its im plementing regulations had since g one into eff ect. 7/8/09 Orde r, Doc ket No. [70] , at 3. The Court a dvised the par ties that once it had r

uled on the question of mootness, it would permit Plaintiffs to re-f ile their motion for par

tial summary

judgme nt if their claim re mained viable. Id. In addition, in order to guide the par

ties’ discussion of the mootness inquiry on re- briefing , the Court noted that, al though Plainti ffs’ briefing on this point is unclea r, t he C ourt has unders t o o d t h at Plaintiffs are seeking only injunctive and decla ratory relief (and not monetary relief ) based on their claim of fac ial unconstitutional i t y

— t h at is, that any claim for damag es relating to the alleg ed unconstituti o n al i t y of the statute is asser ted in conjunction with Plaintiffs’ as-a pplied claim in Count I I I of the Amended Complaint and not in conjunction with Plaintiffs’ fac ial challeng e in Count I I . Thus, althoug h Plaintiffs c orre ctly note that their “suit is f or damag es, as well as for injunctive and decla ratory relief

,” see Pls.’ Reply at 3, the Court under s t an d s that their specific claim of fac ial unconst itutionalit y seeks only injunctive and decla ratory relief

. Consequently , the fac t that Plaintiffs reque st damag es is not rele vant to the question of whether Plaintiffs’ fac ial challeng e is now moot. To the extent that Plaintiffs asser t to the contrar

y , howeve r, Plaintiffs must provide the Court w ith a leg al basis for their asser

tion that they are entitled to monetary damag es based upon their fac ial unconstitutionalit y

claim. Id. at 3-4 (e mphasis in origina l). This matter now c omes befor e the Court on the f iling of the parties’ supplemental brief s addre ssing the que stion of mootness. Pursuant to the schedule propose d by the par ties and adopted by

the Court, Plaintiffs filed an openingSupplemental Memorandum on the I ssues of Mootness and Damag es. Pls.’ Supp. Mem., Docket No. [72]. The I ndividual Defe ndants and the District eac h filed an O pposition t o Plaintiffs’ Supplemental Memorandum. Ind. Def s.’ Opp’n, Docke t No. [73] ; District’s Opp’n, Doc ket No. [74] . Plaintiffs declined to file a ny reply

. Acc ording ly , briefingis now complete, a nd the Court turns to consider whe ther Plaintiffs’ fa cial

8challeng e to the Ac t, as set forth in Count I Iof the Ame nded Complaint, is now moot. II. LEGAL STANDARD A. Standard for Dismiss al Pursuant to Rule 12( b) ( 1) for Lack of Subject Matter Fe dera l courts ar e cour

ts of limit ed jurisdiction and the law presumes that “a c ause lies outside this li mited jurisdiction.” Kokkone n v. Guardian Life Ins. Co. , 511 U.S. 375, 377 (1994); see also Lujan v. Defe nders of W ildlif e , 504 U.S. 555, 561 (1992); Grand Lodge of Fraternal Order of Police v . Ashcroft , 185 F. Supp. 2d 9, 13 (D.D .C. 2001) (statingthat a cour t has an “af firmative oblig ation to ensure that it is actingwithin the scope of its jurisdictional authority”). A cour t must t here fore dismiss a ca se or c laim when it lacks subjec t matter jurisdiction pursuant to Rule 12(b)(1) . In so doing, the Court may “conside r the c omplaint supplemented by undisputed fac ts evidence d in the rec ord, or the c omplaint supplemented by undisputed fac ts plus the cour t’s resolution of disputed fa cts.” Coalit ion for Underground Expansion v. Mine ta , 333 F.3d 193, 198 ( D.C. Cir. 2003) (citations omitted); see also Jerom e Stev ens Pharm., Inc . v. Food &Drug Admin. , 402 F.3d 1249, 1253 ( D.C. Cir. 2005) (“[T]he district court may consider materia ls outside the pleading s in decidingwhether to gr ant a motion to dismi ss for lac k of jurisdiction.”). A c ourt must, however , acc ept as true all fac tual alleg ations contained in the complaint and af

ford the pla intiff the bene fit of all favorable infere nces that can be drawn from the alleg ed fa cts. Leatherman v. Tarrant County Narcotics Intelligence & Coordinati on Unit , 507 U.S. 163, 164 (1993). None theless, in spite of the fa vorable infere nces that a plaintiff

rec eives on a

motion to di smiss, i t remains the plaintiff’ s burden to prove subject matter jurisdiction by

a pre pondera

nce of the evidenc e. Am. Farm Bure au v. Env tl. Prot. Agency , 121 F. Supp. 2d 84, 90 (D.D.C. 2000).

9B. Mootness

“Ar ticle I I Iof the Constituti on restric ts the fede ral c ourts to decidingonly ‘ac tual, ong oing c ontroversie s,’ and a fede ral c ourt has no ‘pow er to re nder a dvisory opinions [ or] . . . decide questions that cannot af fec t the rig hts of litigants in the ca se bef ore the m.’” Nat’l Black Police Ass’n v . D.C. , 108 F.3d 346, 349 ( D.C. Cir. 1997) (interna l citations omit ted) (quoting Honig v. Doe , 484 U.S. 305, 317 (1988) and Preiser v. Ne wkirk , 422 U.S. 295, 401 (1975)). The

case or controve rsy

require ment “mea

ns that, throug hout the litigation, the plaintiff must have suffe red, or

be thre atene d with, an ac tual injury trac eable to the defe ndant and likely to be redr essed by

a fa vorable judicial decision.” Spence r v. Kemna , 523 U.S. 1, 7 (1998) (inter nal quotation marks omitted). In other wor ds, “a live c ontroversy must ex ist at all stage s of re view.” Nat’l Black Police A ss’n , 108 F.3d at 349. “Henc e, ‘[e]ven wher e litigation poses a live controve rsy

when f iled, . . . [t his] court [must] ref rain fr om decidingit if ‘events have so transpire d that the dec ision will neither pr esently aff ect the pa rties’ rights nor have a more-tha n-spec ulative cha

nce of aff ectingthem in the future.’ ” Id. (quoting Clarke v. United States , 915 F.2d 699, 701 ( D.C. Cir. 1990) (en ba nc)) ; see also 21st Century Telesis Joint Venture v . Fed. Commc ’n Comm’n , 318 F.3d 192, 198 ( D.C. Cir. 2003) (explaining that a court must evaluate mootness “ throug h all stag es” of the litigation to ensure that a live contr oversy

rema ins). Where, a s here , the interve ning e vent that ar guably ends the live c ontroversy betwee n Plaintiffs and Def

endants is the District’s e nactment of new leg islative, “voluntary cessation analy sis gove rns [the Court’s] mootness inquiry .” See Nat’l Black Police Ass’n , 108 F.3d a t 349. “Althoug h g ener ally

voluntary

cessation of challeng ed ac tivity does not moot a ca se, a c ourt may

10conclude that voluntary cessa tion has rende red a

case moot if the party

urg ing mootness demonstrates that (1) ‘the re is no re asonable expectation that the alleg ed violation will recur ,’ and (2) ‘interim re lief or e vents have completely or irre vocably

era dicated the eff

ects of the alleg ed violation.’” Id. (quoting County of Los Angeles v. Davis , 440 U.S. 625, 631 (1979)). III. DISCUSS ION Plaintiffs conce de that the f irst require ment of the voluntary cessation test set forth above is satisfied in this case, seePls.’ Supp. M em. at 3, n. 2 (“ Plaintiffs ag ree that the District[’s]

enac tment of the ame nded statute satisfies the first prong of the [ County of Los Angeles v. ] Davis test . . . .”), a

nd for g ood rea son. As the D.C. Circuit has held, whe re the alleg ed violation has bee n mooted by

the passag e of le g islation, “the mere power to ree nact a

challeng ed law is not a suff icient basis on which a

court c an conc lude that a r easona ble expectation of re curr ence exis ts. Rather, there must be evidenc e indicatingthat the cha lleng ed law likely will be

ree nacte d.” Nat’l Black Police A ss’n , 108 F.3d at 349. I n the ca se at ha nd, there is no evidence that the District will repe al the 2008 Amendme nt and its impl ementingregulations. “The Council has not ‘announc ed . . . such a n intention,’ and indee d its enactment of the new leg islation evinces an intent to the c ontrary .” Id. at 349-50 (quoting City of Mesquite v. Alladin’s Cast le, Inc

. , 455 U.S. 283, 289 n. 11 (1982)). A ccor dingly , as Plaintiffs corr ectly acknow ledg e, g iven the ena ctment of the 2008 A mendment and implementingregulations, “there is no reasona

ble expectation that the alleg ed violation will recur .” Pls.’ Supp. Mem. at 3, n. 2. Plaintiffs, however , do argue that the se cond prongof the test outlined above is not met in this case. See id. at 3. As indicate d above, this sec ond inquiry considers whether

the “‘ interim relief or eve nts have c ompletely or irre vocably

era dicated the eff

ects of the alleg ed violation.’”

11Nat’l Black Police A ss’n , 108 F.3d at 349 (quoting Davis , 440 U.S. at 631). In the context of a

fac ial challeng e to a statute, which see ks to have the statute “ decla red unc onstitut ional and enjoined,” this prongis ge nera lly satisfied whe re — a s a re sult of the enac tment of the new leg islation — the prior version of the statute is “no long er in for ce” and ther e is no alleg ation that the pre -ame ndment provisions “continue to have any residual e ffe ct.” Id. at 350. See also Kan. Judicial Rev iew v. Stout , 562 F.3d 1240, 1246 ( 10th Cir. 2009) (“G ener ally , repe al of a challeng ed statute c auses a case to become moot bec ause it extinguishes the plaintiff’ s leg ally cog nizable interest in the outcome, r ender ing a ny reme dial action by

the cour t ineffe ctual.”) ; Khodara Evntl., Inc. v . Bec kman , 237 F.3d 186, 194 ( 3d Cir. 2001) (“Simply put, a dec laration of unconstitutionalit y

or injunction directe d ag ainst the objectionable features of [an ame nded statute] would serve no purpose today .”); see also Citizens for Responsible Gov’t State Political Action Comm. v. Dav idson , 236 F.3d 1174, 112 ( 10th Cir. 2000) (“The parties have no leg ally cog nizable interest in the constitutional validity of an obsolete statute.”); Nat’l Adver. Co. v. The City and Co. of Denver , 912 F.2d 405, 411 ( 10th Cir. 1990) (“A de clar atory judgme nt on the validity of a r epea led ordinanc e is a textbook ex ample of a dvising what the law would be upon a hy pothetical state of

fac ts.”) (inter

nal quotation marks omitted); In re Bunk er Ltd. P’ship , 820 F.2d 308, 311 ( 9th Cir. 1987) (“Where interveningleg islation has settled a controve rsy involving only injunctive or dec laratory relief , the controve rsy

has bec ome moot.”). In this case, the pr ior version of the Act — i.e., the ve rsion Plaintiffs alleg e is fac ially unconstitutional — is “no longer in force ” and Plaintiffs have made no alleg ation that the pre

amendment pr ovisions “continue to have a ny residual e ffe ct.” See Nat’l Black Police Ass’n , 108 F.3d at 350. I ndeed, Plaintiffs c oncede that the Act, a s amende d, now “pr ovides due proc ess to

12future c laimants,” and the y advanc e no ar g ument that the newly amende d Act is itself fac ially unconstitutional. See Pls.’ Supp. M em. at 1. Given this conc ession, it would seem clea r that “dec lara tory and injunctive re lief would no long er be appropriate.” Nat’l Black Police A ss’n , 108 F.3d at 350. I ndeed, Plaintiffs themselve s “agree that their re quest for injunctive r elief is moot.” Pls.’ Supp. M em. at 2, n. 1. None theless, Plaintiffs maintain that their re quest for de clar atory relief , by contra st, has not been r ender ed moot by the ena ctment of the 2008 A mendment. See id. at 5. Specific ally , Plaintiffs argue that an a war d of dec lara

tory relief in their favor

as to the unconstitutionalit y

of the Ac t as previously

written would entitle them to monetary damag es. See id. (“Plaintiffs would be e ntitled to monetary damag es base d on their fa cial unconstitutionality claim, should the g rant a

decla ratory judgme nt.”). Ac cording ly , beca use the e x istence of

a cla im for moneta

ry damag es save s a cla im from mootness, Plainti ffs c onclude that their fac ial challeng e to the Ac t remains viable insofa r as they seek de clar atory

and monetar

y relief . For the

rea sons set forth below, the Court finds that this arg ument is wholly lackingin merit. A. Dec laratory Judgment First, with re spect to Plaintiffs’ cla im for dec laratory relief , the ca se law is cle ar that “a decla ration of unc onstitut ionality . . . ag ainst the objectionable fea tures of the [pre-ame ndment version of the Act] would serve no pur pose today .” Khodara Envtl., Inc. , 237 F.3d at 194. “‘Where a law is amended so a s to remove its cha lleng ed fe ature s, the claim . . . bec omes moot as to those fe ature s.’” Id. (quoting Naturis t Soc., Inc . v. Fillyaw , 958 F.2d 1515, 1520 ( 11th Cir. 1992)). In this case, a

decla ration that the now- obsolete provisions of the Ac t are fac ially unconstitutional would serve no purpose today . Plaintiffs themselves ag ree that the 2008 Amendment and its implementing regulations have re medied any alleg ed constitutional

13defic iencies in the pr ior version. See Pls.’ Supp. M em. at 1 (a g ree ing that “the new Act provide s due proc ess to future c laimants”). Give n this concession, it is clear that “dec laratory

. . . relief would no longe r be a

ppropriate .” Nat’l Black Police A ss’n , 108 F.3d at 350. Plaintiffs’ arguments to the contrar y are without merit. As outlined above, Plaintiffs argue that their r equest for decla ratory relief is not mootbeca

use a de clar ation that the Act, a s previously

written, is fac ially

unconstitutional would then entitle Pl aintiffs to monetary damag es. See Pls.’ Supp. M em. at 5 (“ Plaintiffs would be entitled to monetary damag es base d on their fac ial unconstitutionalit y

claim, should the g rant a decla ratory judgme nt.”). F or the re asons set forth below, how ever , the Court finds that Plaintiffs do not state a viable c laim for monetar y damag es base d upon their fa cial cha lleng e to a now- obsolete ver sion of the Act. Ac cording ly , as Plaintiffs have off

ere d no other a

rgument in support of their position, s ee ge nerally id. at 3-5, the Court finds that Plainti ffs’ r equest for decla ratory relief based on the ir fac ial challeng e is now moot. B. Monetary D amages Second, Plaintiffs argue that their f acia l constituti onality

claim is not moot because Plaintiffs request moneta

ry damag es in conne ction with that claim. The Court disag ree s. Whi le “[a] case is save d from mootness if a viable claim for da mag es exists ,” Khodara Envtl., Inc. , 237 F.3d at 196 (emphasis adde d) (quoting Nat’l Iranian Oil Co. v. Mapc o Int’l, Inc

. , 983 F.2d 485, 489 (3d Cir.1992)), the claim for da mag es must be just that — a viable c laim that is neither “insubstantial” or “ clea

rly fore closed by

prior dec isions.” Mem

phis Li ght, Gas &W

ater Div. v

. Craft , 436 U.S. 1, 9 (1978); see also Tanner Adve r. Group, L.L.C. v. Fay ette Co., Georgia , 451 F.3d 777, 786 ( 11th Cir. 2006) (“A r equest for damag es that is barr ed as a matter of la

w ca nnot

14save a

case from mootness.”) . In this case, Plaintiffs have not asserte d a viable c laim for monetary damag es in conne ction with their fac ial challeng e. As such, the ir fac ial challeng e to the pre -ame ndment version of the Act is not saved f rom mootness. As an initial matter, the Court notes that Plaintiffs have failed to prof fer any case law in support of their position that they are entitled to monetary

damag es in conne ction with their fac ial challeng e. Indeed, Plaintiffs have not cited a single case in which monetar y damag es we re

awa rded in c onnection with a f acia l due proc ess cha lleng e to the constitutionality of a statute, le t alone a statute that has since been r epea led and/or a mended. See ge nerally

Pls.’ Supp. M em. Plaintiffs’ failure to identify any such ca se law is par

ticularly telling g iven that Plaintiffs were specific ally

direc ted by

the Court in its J uly

8, 2009 Orde r to “provide the Court with a leg al basis for their

asser tion that they

are entitled to monetary

damag es base d upon their fa cial unconstitutionalit y

claim.” July

8, 2009 Orde r, Doc ket No. [70] , at 3-4. More over, a lthough this omission was noted by

the District in its opposit ion briefing , seeDistrict’s Opp’n at 5 (observing that “Plaintiffs have not presente d any case (and the District has bee n unable to find a ny ) whe re compensatory

damag es we re a

war ded (or

are available ) base d solely on the exist ence of an unconstitutional statute”), Plaintiffs chose not to file a reply or otherw ise attempt to provide the Court with case la

w to the contra

ry . The pre sent rec ord is there fore devoid of a ny case law or other leg al authority

supporting Plaintiffs’ a ssertion that they are entitled to damag es in

connec tion with their claim that the Act, a s previously written, fa iled to provide suffic ient due proce ss. The re ason for

this dearth of c ase la

w is clea r: Plaintiffs cannot state a viable cla im for monetary damag es in conne ction with their fac ial challeng e. Plaintiffs’ ar g uments on this point

15are based on a fundame ntal misunderstandingof the diff ere nces be tween the ir fac ial constitutionalit y

challeng e, which is the sole c laim now at issue, and their as-a pplied challeng e to the Act. As Plaintiffs themselve s acknow ledg e in their Supplemental Memor andum, the individual Pl aintiffs cla im that they wer e injured by

the alleg edly

“unlawf ul acts” taken by

the Individual Defe ndants pursuant to the ter ms of the Act a s previously written — i.e., that they “suff ere d actua l damag es whe n their pets we re se ized under the prior Act.” Pls.’ Supp. Mem. at 1, 8. In other wor ds, Plainti ffs a lleg e that they wer e dama g ed by

the manner

in which the prior version of the animal cr

uelty statute was applied

to them. Plainti ffs have not, howeve r, alleg ed — nor do they

now ar g ue — that they

wer e dama g ed in any

way by the enactm ent of the alleg edly unconstitutional statute in thi s case . Acc ording ly , althoug h in cer tain circ umstances a plaintiff may

arguably be injured by

the mere enac tment of a fa cially unconstitutional statute — for e x ample, whe re a

plaintiff alleg es that ena ctment of a statute by

itself has ef

fec ted a takingof proper ty or has violated the First Amendme nt — that is not t he ca se at ha nd. Her e, Plaintiffs’ injuries, and henc e their c laims for dama g es, stem from the a lleg edly unconstitutional application of the Ac t in a manner

that permitted their pe ts to be seized and detaine d without due proce ss. Plaintiffs’ claim for c ompensatory damag es in relation to their facia l challeng e ther efor e cannot suc cee d. In arguing that they are entitled to monetary

damag es in conne ction with their fac ial challeng e to the Ac t, Plainti ffs princ ipally rely upon 42 U.S.C. § 1983. SeePls.’ Supp. Mem. at 5-6. Plaintiffs conte nd that if the Court wer e to dec lare the Act unc onstitut ional as previously

written, the Court could then “ order any ‘nec essar y or prope r re lief’ ba sed on the decla ratory judgme nt” pursuant to 28 U.S.C. § 2202 — including, in pa rticular, da

mag es pursuant to sec tion 1983. Id. at 6. The “ ‘the ba sic purpose’ of § 1983 dama g es,” how ever , “is

16‘to compens ate persons for inju ries that are cause d by the depr ivation of constitutional rights.’” Mem phis Comm’ty Sch. D ist. v. Stachura , 477 U.S. 299, 307 (1986) (e mphasis added by Supreme Court in Mem

phis ) (quoting Carey v. P iphus , 435 U.S. 247, 254 (1978)). A ccor dingly , even where a plaintiff a lleg es violations of his constituti onal due pr ocess r ights — rights which

are “ce ntral to our sy stem of orde red liber ty” — the Supre me Court has “ne verthe less held that

no compensatory

damag es [can] be awa

rded f or violation of that rig ht absent proof of ac tual injury .” Id. (citations omitted) (empha sis in original). T hus, while Plaintiffs may be entitled to compensatory

damag es in conne ction with their as-a pplied challeng e to the constitutionality of the Act, they

are not entitled to compensatory damag es in conne ction with their fac ial challeng e. Plaintiffs attempt to save their moneta ry damag es cla im by

noting that “ [a] bsent demonstrable c ompensatory damag es, whe n a cour

t finds a constitutional violation i n an ac tion seekingmonetary

relief under 42 U .S.C. § 1983, t he cour t (or jury ) must at least aw ard nominal damag es.” Pls.’ Supp. Mem. at 6, n. 4. As an initial matter, this argument is asserted sole ly in a single sentenc e in a f

ootnote to Plainti ffs’ Supplementa l Memorandum, see id. , and the c ase la w is clear that courts “ne ed not consider cursor y arguments made only

in a footnote.” Hutchins v. D.C. , 188 F.3d 531, 539, n. 3 ( D.C. Cir. 1999). Reg ardle ss, even if the Court were to consider this argument, it would not alter the Court’s conc lusion that P laintiffs’ fa cial cha lleng e is now moot. Although it is true that “the de nial of proc edura l due proc ess [is] actionable for nominal damag es without proof of a ctual injury ,” Carey , 435 U.S. at 266, the Court emphasizes once ag ain that Plaintiffs have not a lleg ed nor do the y now ar g ue that ena ctment of the A ct, without more, c onstitut ed a violation of Plaintiffs’ c onstitut ional due proc ess rig hts. Accor dingly , while a plaintiff may

be entitled to nominal damag es for a violation of his proce dural due proce ss 17rig hts, even a bsent proof of

an injury , a plaintiff is not entitled to nominal damag es, eve n absent proof that his proc edura l due proc ess rig hts were in fac t violated. Most importantly , Plaintiffs’ Amended Complaint does not include a reque st for nominal damag es — a point which Plaintiffs have not disputed. SeeAm. Compl. p. 30, ¶¶ 5 & 6 ( seeking only “[i] ndividual and class da mag es, jointly

and seve rally

ag ainst all defe ndants” a nd “[p] unitive damag es”) . The D.C. Circuit has pre viously counsele d that in such circ umstances, it is “inappropr iate” to “ strain[] to find infere nces that are not available on the fac e of the complaint” in orde r to permit an other wise moot claim to g o forwa rd. Davis v. D .C. , 158 F.3d 1342, 1349 (D.C. Cir. 1998) (a ffirmingdistrict court’s sua sponte dismiss al of the pla intiff’s complaint for damag es despite the possibility that nominal damag es could be awa rded, be cause the complaint re quested only statutorily

unavailable compensatory and punitive damag es, and lacke d any

specific reque st for nominal damag es); see also Matthews v. D .C. , 675 F. Supp. 2d 180, 188 (D.D.C. 2009) ( “Althoug h an alleg ed denia l of proce dural due proce ss should be actionable for nominal dama g es, the plaintiffs do not eve n reque st nominal damag es in their complaint.”) ( internal quotation marks a nd citations omitt ed); cf. Arizonans for Offi cial English v. Arizona , 520 U.S. 43, 71 (1997) (“ I t should have bee n clea r . . . that a c laim for nominal damag es, extracted late in the day from [plaintiff]’s gene ral pra y er f or re lief and a sserted solely to avoid otherwise c erta in mootness, bore close inspe ction.”). 3 Plaintiffs also briefly

allude to an a

war d of attorne y ’s fe es in their supplementa l 3 briefing

. SeePls.’ Supp. M em. at 7 (br iefly ref err ing to “ attorney ’s fe es” in a pare nthetical citation). While the Individual Defe ndants have , in an abunda nce of caution, tre ated this flee ting ref ere nce a s an af

firmative a

rgument by

Plaintiffs that their reque st for attorne y ’s fe es and c osts saves their

fac ial challeng e fr om mootness, seeInd. Def s.’ Opp’n at 10-11, the Court does not understand Plaintiffs to have made a ny such ar gument. Rather, it is abundantly clea r that Plaintiffs’ argument is based solely on their asse rtion that their fa cial cha lleng e re mains ext ant in

18The Court there fore finds that Plaintiffs’ fac ial challeng e to the Ac t has bee n rende red

moot by the ena ctment of the 2008 A mendment, which Plaintiffs themselves a g ree has re ctified any alleg ed due pr ocess violations in the Act. This finding , howeve r, does not af fec t Plainti ffs’

as-a pplied challeng e to the constitutionality of the Ac t. As indicated a bove, that cla im remains extant at this time. Accor dingly , to the extent P laintiffs ca n demonstrate that the prior Ac t, as applied, re sulted in a violation of their constitutional rig ht to due proce ss and that they wer e injured as a

result of that c onstitut ional violation, Pl aintiffs ar e ar g uably entitled to compensatory damag es. The Court’ s conclusion that Plaintiffs’ fa cial cha lleng e is moot theref ore doe s not eliminate Plaintiffs’ ability to pursue their da

mag es cla im in connection with their as- applied challeng e to the Ac t. At first g lance , then, it is unclear why Plaintiffs — havingrec eived the ultimate r elief soug ht in connection with their fa cial cha lleng e, i.e., a new statute that provides pet owne rs with due proc ess — have not proce eded dir ectly to liti g ate the me rits of their as- applied cha lleng e to the Act. The rea son for this, howeve r, is appar ent upon re view of the Plaintiffs’ Supplemental Motion. As set forth there in, Plainti ffs a ppear to be under

the misguide d belief that a holding by this Court t hat the Ac t is unconstitut ional as pre viously written would, in eff

ect, se rve a s a litigation “short- cut.” Plaintiffs urg e that if this Court were to find that the Act a s previously written is fac ially

unconstitutional, “then it [ i.e., the Ac t] is unconstituti onal as to all plaintiffs, light of the ir reque st for compe nsatory damag es. See id. at 5-7; cf. Am. W ildlands v. Kempthorne , 530 F.3d 991, 1001 ( D.C. Cir. 2008) ( “ A flee ting state ment in the pare nthetical of a citation is no more suffic ient to raise a claim than a c ursory

rema rk in a footnote, which we ha ve consistently

reje cted.” ). Reg ardle ss, the Court notes that any such ar g ument is forec losed by D.C. Circuit prece dent. See Liu v. I mmigration Natur alizati on Servs. , 274 F.3d 533, 536 ( D.C. Cir. 2001) (re

jectingclaim that re quest for “ attorney ’s fe es is sufficie nt to save the c ase f rom mootness”). 19and the litigation in thi s case will be substantially shortened, a

nd can the n focus on the r emaining issues, such as damag es.” Pls.’ Supp. Mem. at 7; see also id. at 2 (“ In plaintiff’s [ sic ] vi ew, a deter mination that the prior Act is fa cially unconstitutional will resolve the centr al leg al [iss ue] in this case, a

nd allow the par

ties to then proper ly

addre ss the rema ining issues in the c ase, including c lass cer

tification, a discove ry

plan, and damag es.”) . In other wor ds, Plainti ffs c ontend that a findingin their favor as to the fa cial unconstitutionality of the Ac t would permit them to proce ed dire ctly

to the damag es stag e, ther eby avoidinglitigation of their a s-applied c laim. Under this theory , Plaintiffs would be entitled to monetary damag es for

injuries cause d by

the enfor ceme nt of the Ac t without being r equire d to first prove the me rits of their as- applied cla im, the litigation of which — unlike their fa cial cha lleng e — would re quire the time a nd expense of discovery

. See id. at 7 (notingthat resolution of a f acia l challeng e to the constitutionality of a statute does not ty

pically require discovery

). Such an a

rgument is patently

incorre ct. To the extent P laintiffs seek c ompensatory damag es for

individual injuries alleg edly sustained by application of the Act, they must procee d with liti g ation of their a s-applied c halleng es.

IV. CONCLUSION For the re asons set for

th above, the Court f

inds that Pl aintiffs’ f

acia l challeng e to the constitutionalit y

of the Ac t is now MOOT. Acc ording ly , the Court shall DI SMI SS C ount I Iof the Amende d Complaint i nsofar as it asserts a

fac ial challeng e to the constitutionality of the Ac t. An appr opriate O rder

acc ompanies this Memorandum Opinion. Date: Ma y 2, 2010. /s/ COLLE EN KOLLAR-K OTEL LY United States District J udg e 20