NORTH CAROLINA DIVISION OF SONS OF CONFEDERATE VETERANS, INC. v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

NORTH CAROLINA DIVISION OF SONS )

OF CONFEDERATE VETERANS, INC., )

)

Plaintiff, )

)

v. ) 1:21CV296

)

NORTH CAROLINA DEPARTMENT OF )

TRANSPORTATION, J. ERIC )

BOYETTE, in his official )

capacity as SECRETARY OF )

TRANSPORTATION OF THE STATE OF )

NORTH CAROLINA, NORTH CAROLINA )

DIVISION OF MOTOR VEHICLES, )

and TORRE JESSUP, in his )

official capacity as )

COMMISSIONER OF MOTOR VEHICLES )

OF THE STATE OF NORTH CAROLINA, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Presently before the court is a Motion to Dismiss in Lieu

of an Answer filed by Defendants North Carolina Department of

Transportation, North Carolina Division of Motor Vehicles, J.

Eric Boyette (in his official capacity as Secretary of the North

Carolina Department of Transportation), and Torre Jessup, (in

his official capacity as Commissioner of North Carolina Division

of Motor Vehicles) (together, “Defendants”). (Doc. 8.)1 The North

Carolina Division of Sons of Confederate Veterans, Inc.

(“Plaintiff”) responded in opposition. (Doc. 10.) Defendants

replied. (Doc. 15.) Plaintiff then filed a Motion for Stay of

Proceedings, (Doc. 18), which Defendants opposed, (Doc. 21).

For the reasons set forth herein, this court will grant

Defendants’ motion to dismiss and deny Plaintiff’s stay motion.

I. FACTUAL BACKGROUND

On a motion to dismiss, a court must “accept as true all of

the factual allegations contained in the complaint.” King v.

Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016). The facts, taken

in the light most favorable to Plaintiff, are as follows.

Plaintiff is a nonprofit corporation organized under North

Carolina law and is affiliated with the Sons of Confederate

Veterans, Inc. (“SCV”). (Compl. (Doc. 5) ¶ 1.) Plaintiff’s

insignia “is a representation of the Confederate Battle Flag

flanked on the left, top, and right sides by the words ‘SONS OF

CONFEDERATE VETERANS,’ and on the bottom side by the year

1 All citations in this Memorandum Opinion and Order to

documents filed with the court refer to the page numbers located

at the bottom right-hand corner of the documents as they appear

on CM/ECF.

‘1896,’” (id. ¶ 21), the year in which SCV was founded, (id.

¶ 9).2

North Carolina’s Department of Transportation (“NCDOT”),

through the Division of Motor Vehicles (“DMV”), issues specialty

license plates3 that “set aside” a “designated segment of the

plate” to feature the emblems of nationally recognized civic

organizations. (Id. ¶¶ 24—25 (quoting N.C. Gen. Stat. § 20-

79.4(a3), (b)(44)).) As part of this program, Plaintiff’s

members “have held and renewed special commemorative license

plates identifying them as members of the SCV” via the featuring

of the organization’s insignia on their North Carolina license

plates. (Id. ¶ 26.) But, beginning in July 2020, the DMV started

withholding “the shipment of the specialty plates to SCV

members.” (Id. ¶ 29.) In response, Plaintiff and its members

“made numerous and varied efforts to engage with Defendants

regarding this matter, via telephone calls, emails, and visits

2 This court notes that Plaintiff’s insignia was attached to

the Complaint as an exhibit. (Compl. (Doc. 5) at 14.) It and

other exhibits attached to Plaintiff’s Complaint, (see id. at

12—19), may be considered in adjudicating Defendants’ motion to

dismiss. Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166

(4th Cir. 2016) (stating that at the Rule 12(b)(6) stage courts

may “consider documents that are . . . attached to the complaint

as exhibits”).

3 These plates, like all license plates issued by the DMV,

“remain the property of the State[.]” N.C. Gen. Stat. § 20-

63(a).

to DMV offices.” (Id.) Eventually, the plates were released in

December 2020. (Id.)

However, effective January 1, 2021, Defendants decided to

“no longer issue or renew specialty license plates bearing the

Confederate battle flag or any variation of that flag.” (Id. at

15.) Plaintiff was informed of this decision in a January 11,

2021 letter from NCDOT which states that the “DMV will either

issue SCV members standard plates and refund any specialty-plate

fees paid or provide them with different specialty plates.” (Id.

at 16.) The letter justifies this decision on grounds that

“specialty license plates constitute government speech[,]” and

“license plates bearing the Confederate battle flag have the

potential to offend those who view them.” (Id. at 15.) The

letter also notes that the DMV “will continue to recognize

[Plaintiff] as a civic organization entitled to the issuance of

a specialty plate[,]” and accordingly the “DMV remains open to

considering alternative artwork” for Plaintiff’s specialty plate

that “does not contain the Confederate battle flag.” (Id.)

II. PROCEDURAL HISTORY

On March 8, 2021, Plaintiff filed its Complaint in Lee

County Superior Court against Defendants. (Compl. (Doc. 5).) The

Complaint asserts (1) a 42 U.S.C. § 1983 claim, (2) a

preliminary and permanent injunction claim, (3) a declaratory

judgment claim, and (4) an attorney fees claim. (Id. ¶¶ 35—59.)

On April 8, 2021, Defendants filed a petition with this court to

remove the case from state to federal court on federal question

and supplemental jurisdiction grounds. (Doc. 1.) On May 6, 2021,

Defendants filed a motion to dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(6), (Doc. 8), along with an accompanying

memorandum, (Defs.’ Mem. of Law in Supp. of Mot. to Dismiss in

Lieu of Answer (“Defs.’ Br.”) (Doc. 9)). Plaintiff responded in

opposition. (Br. in Opp’n to Defs.’ Mot. to Dismiss (“Pl.’s

Br.”) (Doc. 10).) Defendants replied. (Doc. 15.) Additionally,

pursuant to an order of this court, (Doc. 16), Plaintiff filed a

supplemental memorandum, (Doc. 17).

Subsequently, on December 29, 2021, Plaintiff filed a

motion to stay this court’s proceedings, (Doc. 18), accompanied

by a supporting memorandum, (Mem. of Law in Supp. of Mot. for

Stay of Proceedings (“Pl.’s Stay Br.”) (Doc. 19)). Defendants

responded in opposition, (Defs.’ Opp’n to Pl.’s Mot. for Stay.

(“Defs.’ Stay Br.”) (Doc. 21)), and Plaintiff replied, (Doc.

22).

Both Defendants’ motion to dismiss and Plaintiff’s motion

for stay are now ripe for adjudication.

III. ANALYSIS

This court will grant Defendants’ motion to dismiss and

deny Plaintiff’s stay motion. Plaintiff’s stay motion will be

addressed first.

A. Motion for Stay

Plaintiff has filed a motion to stay this court’s

proceedings until the Supreme Court issues a decision in

Shurtleff v. City of Boston. (Doc. 18.) In that case, Boston

denied the plaintiffs’ application to fly a “Christian flag” on

a flagpole in front of Boston City Hall, which has historically

been available for the display of flags other than those of the

United States, Massachusetts, and Boston. Shurtleff v. City of

Bos., 986 F.3d 78, 82—85 (1st Cir. 2021). The plaintiffs claimed

their First Amendment rights had been violated and sued Boston

and a city official. Id.

The First Circuit affirmed a ruling in favor of the

defendants, holding that the “display of third-party flags on

the City Hall flagpole constitutes government speech, not

subject to most First Amendment restrictions.” Id. at 85, 94. In

its decision, the First Circuit applied a three-factor analysis

that the Supreme Court has used to determine whether speech

constitutes government speech. Id. at 86—94. One of the cases in

which the Supreme Court has articulated that analysis is Walker

v. Texas Division, Sons of Confederate Veterans, Inc., a 2015

license plate case with strikingly similar facts to the instant

case. 576 U.S. 200 (2015) (rejecting a First Amendment claim

challenging Texas’ denial of the Texas Division of the Sons of

Confederate Veterans’ request for a specialty license plate

featuring the organization’s insignia).

After losing at the First Circuit, the Shurtleff

plaintiffs’ writ of certiorari was accepted by the Supreme

Court. 142 S. Ct. 55 (2021). The Court heard arguments on

January 18, 2022. Docket Sheet, Shurtleff v. City of Bos.,

(No. 20-1158), https://www.supremecourt.gov/search.aspx?

filename=/docket/docketfiles/html/public/20-1800.html. A

decision can be expected sometime before the Court ends its

current term in late June 2022.

Plaintiff argues that this court’s proceedings should be

stayed until the Supreme Court decides Shurtleff because that

case “implicates the government speech and public forum

doctrines of First Amendment jurisprudence, both of which are

involved in the case now before this court on Defendants’ motion

to dismiss.” (Pl.’s Stay Br. (Doc. 19) at 4.) Therefore,

Plaintiff “contends that the interests of justice and judicial

economy will be served by entering an order staying all

proceedings in this matter pending a decision by the Supreme

Court.” (Id.)

Defendants disagree. (Defs.’ Stay Br. (Doc. 21) at 1.) They

argue that judicial economy will not be served by waiting for

the Court’s Shurtleff opinion because that decision is highly

unlikely to impact the instant case. (Id.) Defendants claim that

this is because “the Shurtleff petitioners have not asked the

Court to modify the test for identifying government speech.

Instead, the Shurtleff petitioners have simply asked the Supreme

Court to apply the now-settled Walker test in a new factual

context.” (Id. at 3.) Defendants thus conclude that “while

Shurtleff will doubtlessly provide new guidance with respect to

flags, it is unlikely to provide any new guidance with respect

to license plates” given that the Court already addressed

license plates and the government speech doctrine in Walker.

(Id.)

“[T]he power to stay proceedings is incidental to the power

inherent in every court to control the disposition of the causes

on its docket with economy of time and effort for itself, for

counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248,

254 (1936). “The grant or denial of a request to stay

proceedings calls for an exercise of the district court’s

judgment ‘to balance the various factors relevant to the

expeditious and comprehensive disposition of the causes of

action on the court’s docket.’” Maryland v. Universal Elections,

Inc., 729 F.3d 370, 375 (4th Cir. 2013) (quoting United States

v. Ga. Pac. Corp., 562 F.2d 294, 296 (4th Cir. 1977)).

Specifically, there are three main “[f]actors courts consider in

deciding whether to exercise their discretion to stay

proceedings.” Common Cause v. Rucho, Nos. 1:16-CV-1026, 1:16-CV-

1164, 2017 WL 3981300, at *3 (M.D.N.C. Sept. 8, 2017). They are

“[1] the interests of judicial economy, [2] the hardship and

inequity to the moving party in the absence of a stay, and [3]

the potential prejudice to the non-moving party in the event of

a stay.” Yadkin Riverkeeper, Inc. v. Duke Energy Carolinas, LLC,

141 F. Supp. 3d 428, 452 (M.D.N.C. 2015). The moving party must

establish that the first and second factors constitute “clear

and convincing circumstances outweighing” the third factor.

Williford v. Armstrong World Indus., Inc., 715 F.2d 124, 127

(4th Cir. 1983).

Here, the first two factors—judicial economy and hardship

to the moving party—fail to establish that clear and convincing

circumstances warrant a stay. Accordingly, Plaintiff has failed

to discharge its burden to show that those factors outweigh the

third factor, prejudice to the non-moving party.4 In Rucho, a

political gerrymandering case, a three-judge panel denied a

motion to stay proceedings. 2017 WL 3981300, at *8. The motion

had requested that the case be placed in abeyance until the

Supreme Court decided Gill v. Whitford, another political

gerrymandering case. Id. at *2—3. The Rucho panel reasoned that

because the Supreme Court case differed significantly from the

case before it, waiting for Whitford to be decided could prove

futile since there was “a distinct possibility” it would provide

“no additional guidance as to how to resolve Plaintiffs’

claims.” Id. at *6. Thus, the Rucho panel held, inter alia, that

“[i]n light of the numerous . . . factual differences between

Whitford and the instant case, staying these proceedings will,

at most, minimally advance the interests of judicial economy and

preventing hardship to [the moving party].” Id.

So too here. The factual distinctions between the instant

case and Shurtleff are stark. This case involves license plates.

4 However, this court notes that Defendants have failed to

articulate any concrete prejudice they will face if this case is

stayed. Instead, Defendants broadly assert that they and “the

citizenry of North Carolina have a clear interest in the

expeditious and final resolution of this important

constitutional issue.” (Defs.’ Stay Br. (Doc. 21) at 4 n.1.)

While that may be so, it is not specific enough to constitute

cognizable prejudice. But because this court finds that

Plaintiff has failed to establish that the first two factors

constitute clear and convincing circumstances warranting a stay,

it is ultimately immaterial that Defendants have not shown in

any tangible way that they will be prejudiced by a stay.

Shurtleff involves flags. That distinction is meaningful because

the Shurtleff petitioners have not fundamentally challenged the

three-factor government speech analysis’ framework, see Br. for

Pet’rs, No. 20-1158 (2021) (arguing that the First Circuit

applied the three factors too rigidly), which Walker already

applied to license plates. Accordingly, the instant case seems

to be squarely governed by Walker. While Shurtleff may clarify

the government speech doctrine in some circumstances, there is

at least a “distinct possibility” that the thrust of the opinion

will simply apply the doctrine to a novel factual context and

consequently provide “no additional guidance as to how to

resolve Plaintiff[’s] claims.” Rucho, 2017 WL 3981300, at *6. If

so, judicial economy would not be served by waiting for

Shurtleff’s publication nor would Plaintiff be harmed by this

case proceeding in advance of it. As stated by the Rucho panel,

“[i]t makes little sense ‘to delay consideration of this case .

. . waiting for a decision that may not ultimately affect it.’”

Id. (quoting Ga. State Conf. of NAACP v. Georgia, 269 F. Supp.

3d 1266, 1283 (N.D. Ga. 2017)).

Thus, this court will deny Plaintiff’s stay motion because

Plaintiff has failed to establish that judicial economy and the

hardship it will suffer in the absence of a stay (factors one

and two) constitute clear and convincing circumstances

justifying staying this court’s proceedings.

B. Motion to Dismiss

This court will now address Defendants’ motion to dismiss.

“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint

must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is

plausible on its face “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged” and demonstrates

“more than a sheer possibility that a defendant has acted

unlawfully.” Id. When ruling on a motion to dismiss, this court

accepts the complaint’s factual allegations as true. Id.

Further, this court liberally construes “the complaint,

including all reasonable inferences therefrom . . . in the

plaintiff’s favor.” Est. of Williams-Moore v. All. One

Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 646 (M.D.N.C.

2004). This court does not, however, accept legal conclusions as

true, and “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not

suffice.” Iqbal, 556 U.S. at 678.

Plaintiff asserts a 42 U.S.C. § 1983 claim on grounds that

“its rights under the First, Fifth, and Fourteenth Amendments to

the United States Constitution have been abridged and denied

under color of state law by Defendants.” (Compl. (Doc. 5) ¶ 42.)

Each alleged constitutional violation is addressed in turn

below. As will be explained, Plaintiff has failed to plead

sufficient facts to allege a plausible § 1983 claim on any of

these constitutional grounds. Thus, this court will dismiss the

claim as well as Plaintiff’s related claims for injunctive

relief, declaratory judgment, and attorney fees. (Id. ¶¶ 35—59).

1. Free Speech Allegations

Plaintiff claims its First Amendment free speech rights

have been violated because “Defendants seek to bar Plaintiff []

and its members from expressing their viewpoint while allowing

other groups to express their viewpoint without restriction[.]”

(Id. ¶ 37.) Defendants urge dismissal of this claim “because

specialty license plates issued by North Carolina are government

speech, and [thus] the State’s denial of a specialty license

plate bearing the confederate battle flag is not subject to

First Amendment scrutiny.” (Defs.’ Br. (Doc. 9) at 6.)

Defendants insist the conclusion that North Carolina specialty

license plates are government speech is required by binding and

controlling case law—namely Walker, 576 U.S. 200, and ACLU v.

Tennyson, 815 F.3d 183 (4th Cir. 2016). (Id. at 6–9.)

In Walker, the Supreme Court denied a First Amendment free

speech claim challenging Texas’ rejection of the Texas Division

of the Sons of Confederate Veterans’ request for a specialty

license plate featuring the organization’s insignia.5 576 U.S. at

219. Walker held that the content on Texas specialty license

plates is not private speech in a public forum with attendant

First Amendment protections but rather government speech

entirely outside the purview of the Free Speech Clause. Id.

Thus, Texas “was consequently entitled to refuse to issue plates

featuring SCV’s” logo without fear of infringing any private

entity or individual’s free speech rights. Id. at 219—20. In its

analysis, the Court applied three factors to Texas’ specialty

license plates to determine whether they were government speech:

(1) the history of using license plates to communicate messages

to the public; (2) the extent in which license plate designs are

identified in the public mind with government; and (3) the

degree of control the state maintains over the message on

specialty plates. Id. at 210-13 (citing Pleasant Grove City v.

5 The Texas Division of the Sons of Confederate Veterans

uses the same insignia as Plaintiff. Compare Walker, 576 U.S. at

220, with (Compl. (Doc. 5) at 14).

Summum, 555 U.S. 460, 472 (2009)). All three factors indicated

the specialty plates were government speech. Id.

In Tennyson, the Fourth Circuit applied Walker to North

Carolina’s specialty license program, which it described as

“substantively indistinguishable” from Texas’ specialty license

plate program. 815 F.3d at 185. The Fourth Circuit held that

“specialty license plates issued under North Carolina’s program

amount to government speech and that North Carolina is therefore

free to reject license plate designs that convey messages with

which it disagrees.” Id. (citing Walker, 576 U.S. at 207).

Plaintiff strives to distinguish Walker and Tennyson from

the instant case. Plaintiff insists that Walker “does not

control the outcome of [the] present case because of significant

factual and legal distinctions.” (Pl.’s Br. (Doc. 10) at 10.)

Plaintiff argues that unlike North Carolina’s specialty license

plate program, the statutes underpinning Texas’ program are

“permeated with discretion.” (Id. at 11.) Plaintiff stresses

that those statutes allow Texas to “refuse to create a new

specialty license plate for a number of reasons, for example if

the design might be offensive to any member of the public.” (Id.

(internal quotation marks omitted) (quoting Tex. Transp. Code

Ann. § 504.801(c)).) In contrast, Plaintiff maintains that the

statutes governing North Carolina’s program do not confer the

State any discretion to deny a qualifying civic organization its

requested plate design, so long as that design does “not

obstruct the license plate number or render it unreadable.”

(Id.)

Plaintiff similarly tries to distinguish Tennyson, arguing

that because the plate at issue was not a civic club plate—it

was a “pro-choice” plate unaffiliated with any particular

organization—the case has “nothing to do with the precise facts

and statutory language involved in the case at bar[.]” (Id.)

Moreover, Plaintiff argues that Tennyson’s holding did not

account for the North Carolina Court of Appeal’s “language [in]

Faulkner that whether the Confederate Battle Flag should be

displayed on state-issued license plates is a question of public

policy reserved to the [State’s] General Assembly.” (Id. at 12

(referencing N.C. Div. of Sons of Confederate Veterans v.

Faulkner, 131 N.C. App. 775, 509 S.E.2d 207 (1998), which held

that Plaintiff qualifies as a civic club for purposes of North

Carolina’s specialty license plate statute).)

This court is unpersuaded by Plaintiff’s attempts to

distinguish Walker and Tennyson from the instant case. As to

Tennyson, the Fourth Circuit’s language in its holding was

categorical and not contingent on the type of specialty plate at

issue. 815 F.3d at 185. The Fourth Circuit stated, “we now

conclude that specialty license plates issued under North

Carolina’s program amount to government speech and that North

Carolina is therefore free to reject license plate designs that

convey messages with which it disagrees.” Id. Plaintiff offers

no rationale why the mere fact that its license plates are civic

club specialty license plates should exempt it from Tennyson’s

plain and unequivocal holding.

Furthermore, Plaintiff’s reliance on Faulkner to undermine

Tennyson is misplaced. Faulkner decided a narrow question of

state law: whether Plaintiff qualifies as a civic club for

purposes of the specialty license plate statute. 131 N.C. App.

at 781, 509 S.E.2d at 211. While the North Carolina Court of

Appeals decided Plaintiff did so qualify, that holding has no

bearing on the federal constitutional question of whether

denying Plaintiff a license plate violates the First Amendment’s

free speech guarantees. Indeed, the only time Faulkner mentions

the First Amendment—or anything about the Constitution for that

matter—is in a footnote in which it notes that “allowing some

organizations . . . to obtain personalized plates while

disallowing others . . . could implicate the First Amendment’s

restriction against content-based restraints on free speech.”

Id. at 777 n.1, 509 S.E.2d at 209 n.1. Such speculation by the

North Carolina Court of Appeals in 1998 was decisively rejected

by the Supreme Court in its 2015 Walker decision. Therefore,

Faulkner in no way undercuts Tennyson which relied on Walker.

Accordingly, Tennyson’s holding that North Carolina’s specialty

license plates are government speech applies here to negate

Plaintiff’s First Amendment claim.

But even assuming arguendo that Plaintiff was correct that

“Tennyson is not controlling[,]” (Pl.’s Br. (Doc. 10) at 12),

Plaintiff’s free speech would still be controlled by Walker.

Plaintiff’s attempt to distinguish Walker implicates the third

factor for government speech: the degree of control the state

has over the message of the speech. See 576 U.S. at 210, 213. In

Walker, the Supreme Court found that

Texas maintains direct control over the messages

conveyed on its specialty plates. Texas law provides

that the State has sole control over the design,

typeface, color, and alphanumeric pattern for all

license plates. The [Texas Department of Motor

Vehicles] Board must approve every specialty plate

design proposal before the design can appear on a

Texas plate. And the Board and its predecessor have

actively exercised this authority. Texas asserts, and

SCV concedes, that the State has rejected at least a

dozen proposed designs. Accordingly, Texas has

effectively controlled the messages conveyed by

exercising final approval authority over their

selection. This final approval authority allows Texas

to choose how to present itself and its constituency.

Id. (cleaned up). While this language discusses the particulars

of the discretion granted to Texas authorities in approving

specialty plates, a court in this circuit has held that “[t]here

is no merit to [the] [p]laintiff’s contention that Walker is

limited solely to one of Texas’s methods of selecting specialty

plate designs. The Supreme Court’s decision did not rely on the

method used to select the plate designs[.]” Sons of Confederate

Veterans, Inc. v. Holcomb, No. 7:99-cv-00530, 2015 WL 4662435,

at *3 (W.D. Va. Aug. 6, 2015). Crucially, and persuasively, that

court concluded that “[n]othing in the Supreme Court’s decision

suggests that if the method used to select the plate is varied,

the reasoning of the Court’s conclusion would be altered.” Id.

The court in that case was applying Walker to Virginia’s

specialty license plate program. Id. The plaintiffs, SCV and

SCV’s Virginia Division, had made the same argument that

Plaintiff makes here as to why Walker should not apply to

another state’s specialty license program. Id. They argued that

unlike Texas, Virginia did “not exercise editorial discretion

over the content of the specialty plate designs, and therefore

the speech remains the speech of the individual.” Id. at *4. The

court disagreed, finding that Virginia did “exercise control

over the design of specialty plates[,]” in part because Virginia

law designates Virginia’s DMV as the entity “responsible for

designing and issuing specialty plates.” Id. The court ruled

that “[t]he fact that the [DMV] Commissioner often adopts the

proposed designs of sponsoring groups in no way undermines the

Commonwealth’s authority to design the plates and, thus, speak

by adopting the speech of another.” Id.

Likewise, North Carolina, via its Division of Motor

Vehicles, exercises direct control over the design of specialty

license plates. The applicable statutes provide that “[t]he

Division shall develop . . . a standardized format for special

license plates[,]” and that even after the North Carolina

General Assembly approves of a specific specialty license plate

proposed by a civic club, “[t]he Division must review the

artwork to ensure it complies with the standardized format.”

N.C. Gen. Stat. §§ 20-79.3A(d)(1), 20-79.4(a3). Like Holcomb,

that North Carolina’s DMV may “adopt[] the proposed designs of

sponsoring groups in no way undermines the [State]’s authority

to design the” overall standardized format for the “plates and,

thus, speak by adopting the speech of another.” 2015 WL 4662435,

at *4. Indeed, that North Carolina’s DMV “must approve every

specialty plate design proposal before the design can appear on

a [North Carolina specialty] plate” evinces that the State

retains “final approval authority” over the plates’ designs.

Walker, 576 U.S. at 213. This constitutes sufficient control

over the message of the plate’s speech. Thus, the third factor

for identifying government speech indicates that North

Carolina’s specialty license plates—including civic club plates—

are government speech and hence immunized from First Amendment

scrutiny.

In sum, this court finds that Plaintiff’s First Amendment

challenge is defeated by Tennyson’s categorical language, which

held that North Carolina’s specialty license program is

government speech. And even assuming, arguendo, that Tennyson is

not controlling, this court finds that Plaintiff’s challenge to

the third Walker factor fails because North Carolina does

exercise control over the message of specialty license plates.

Therefore, this court will grant Defendants’ motion to dismiss

Plaintiff’s § 1983 claim to the extent it asserts a First

Amendment free speech violation.6

6 Plaintiff brings a separate, but related, claim for relief

under North Carolina’s Declaratory Judgment Act, N.C. Gen. Stat.

§ 1-253. (Compl. (Doc. 5) ¶¶ 49—57.) The claim seeks declaratory

judgment regarding “the extent and manner of the right to apply

for and receive the commemorative license plates” under North

Carolina’s specialty license plate statutes “as well as

regarding the discretion, if any, Defendants have in determining

which commemorative license plates it will issue.” (Id. ¶ 56.)

(Footnote continued)

2. Due Process Allegations7

Plaintiff claims it and its members have been deprived of

“their liberty without due process of law.” (Compl. (Doc. 5)

¶ 38.) Although Plaintiff fails to clearly specify, this court

assumes that this due process claim is a procedural due process

claim. This court makes such an assumption because Plaintiff’s

brief explicitly acknowledges that it has not pled a substantive

due process claim. (Pl.’s Br. (Doc. 10) at 13 (“Given the bare

This declaratory judgment claim is mooted by this court’s

holding that North Carolina’s specialty license plate statutory

program facilitates government speech, and thus Plaintiff’s

members are not entitled to receive specialty license plates

featuring Plaintiff’s insignia. Supra Part III.B.1. This holding

resolves the actual controversy regarding the specialty license

plate statutes, and thus no further interpretation of those

statutes is required. See Lide v. Mears, 231 N.C. 111, 118, 56

S.E.2d 404, 409 (1949) (“[A]n action for a declaratory judgment

will lie only in a case in which there is an actual or real

existing controversy between parties . . . .”). Therefore,

Plaintiff’s Declaratory Judgment Act claim will be dismissed.

See Calabria v. N.C. State Bd. of Elections, 198 N.C. App. 550,

555, 680 S.E.2d 738. 743 (2009) (“If the issues before a court

or administrative body become moot at any time during the course

of the proceedings, the usual response should be to dismiss the

action because a moot question is not within the scope of our

Declaratory Judgment Act.” (cleaned up)).

7 Plaintiff pleads its due process allegations under the

Fifth Amendment. (Compl. (Doc. 5) ¶ 38). However, the Fifth

Amendment’s Due Process Clause applies only to the federal

Government. Plaintiff should have pled its due process claim

under the Fourteenth Amendment’s Due Process Clause which

applies to state governments. Because Plaintiff’s allegations

must be liberally construed at the motion to dismiss stage, Est.

of Williams-Moore, 335 F. Supp. 2d at 646, this court will

construe Plaintiff’s due process allegations as being made

pursuant to the Fourteenth Amendment.

allegations in its Complaint, Plaintiff has not asserted facts

plausibly giving rise to a substantive due process claim.”)8.)

Defendants urge dismissal of Plaintiff’s procedural due process

claim on grounds that Plaintiff has failed to allege a

recognizable liberty or property interest at issue, and that it

has failed to allege “North Carolina provided it with a

constitutionally inadequate process prior to denying its license

plate application.” (Defs.’ Br. (Doc. 9) at 15 n.4.)

In light of this court’s holding that Plaintiff has no

First Amendment rights in relation to North Carolina’s specialty

license plate program, supra Part III.B.1, this court agrees

that Plaintiff’s procedural due process claim must fail because

there is no recognizable liberty interest at issue. But even

assuming arguendo there was a recognizable liberty interest at

stake, Plaintiff’s procedural due process claim would still fail

because the Complaint does not plausibly allege that North

Carolina engaged in a constitutionally deficient process in

deciding to cease printing license plates featuring the

Confederate battle flag. Plaintiff had significant advance

notice that a decision to discontinue printing such license

plates was under consideration. (See Compl. (Doc. 5) ¶ 29.)

8 This court notes that this sentence appears to be copied

verbatim from Defendants’ brief. (See Defs.’ Br. (Doc. 9) at

16.)

Plaintiff states that “[b]efore filing this action, Plaintiff []

and its members, for over 6 months, made numerous and varied

efforts to engage with Defendants regarding this matter, via

telephone calls, emails, and visits to DMV offices.” (Id.) These

entreaties appear to have been heard and considered by

Defendants. (See id. at 15.) NCDOT’s letter announcing the

January 2021 decision to cease printing license plates featuring

the Confederate battle flag is addressed to Plaintiff’s counsel

and written “in response to [his] letter dated November 2,

2020.” (Id.) The NCDOT letter states that prior to the final

decision being made “efforts were made by this administration to

work with [Plaintiff]” to find a mutually agreeable resolution.

(Id.)

Plaintiff has not specified which part of this process it

considers constitutionally inadequate. This court notes that

Plaintiff had notice of the pending decision. (See id. ¶ 29.) It

had the ability to comment on that pending decision. (Id.)

Therefore, Plaintiff’s assertion that Defendants engaged in a

“constitutionally inadequate process,” (Pl.’s Br. (Doc. 10) at

13), is contrary to the facts in the Complaint and a threadbare

legal conclusion only “supported by mere conclusory statements,”

Iqbal, 556 U.S. at 678. Thus, this court will grant Defendants’

motion to dismiss Plaintiff’s § 1983 claim insofar as that claim

alleges a due process violation.9

3. Equal Protection Allegations

Plaintiff claims that it and its members have been denied

“equal protection of the law under the Fourteenth Amendment”

because its speech has been restricted “in favor of supporting

and endorsing the viewpoints of those who oppose any display of

the Confederate Battle Flag for any purpose.” (Compl. (Doc. 5)

¶ 39.) Defendants seek dismissal of this equal protection claim

because Plaintiff “has alleged no facts that would show that it

was treated less favorably than other similarly situated

applicants for specialty license plates” nor has it sufficiently

alleged discriminatory intent or improper motive. (Defs.’ Br.

(Doc. 9) at 17.)

Plaintiff has failed to allege sufficient facts to

constitute a plausible equal protection claim for two reasons.

9 Plaintiff acknowledges that the requirements for a due

process claim are identical under the United States and North

Carolina Constitutions. (Pl.’s Br. (Doc. 10) at 14 (“[T]o state

a due process . . . claim under Article I, Section 19 of the

North Carolina Constitution, a plaintiff must make the same

factual allegations required to establish a federal

constitutional claim.” (citing Sheaffer v. Cnty. of Chatham, 337

F. Supp. 2d 709, 731 (M.D.N.C. 2004); Bacon v. Lee, 353 N.C.

696, 720—21, 549 S.E.2d 840, 856 (2001)).) Therefore, to the

extent Plaintiff has also alleged a due process violation under

North Carolina’s Constitution, (see Compl. (Doc. 5) ¶ 55), that

claim will likewise be dismissed.

First, “[t]o succeed on an equal protection claim, a plaintiff

must . . . demonstrate that he has been treated differently from

others with whom he is similarly situated and that the unequal

treatment was the result of intentional or purposeful

discrimination.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th

Cir. 2001). Here, Plaintiff has failed to establish that it has

been treated differently from others similarly situated. Other

entities or individuals that want license plates featuring the

Confederate battle flag will similarly be unable to receive them

under Defendants’ policy because the policy facially applies

more broadly than to just Plaintiff’s insignia. Instead, it

applies to any “specialty license plates bearing the Confederate

battle flag or any variation of that flag.” (Compl. (Doc. 5) at

15.) Additionally, that the “DMV remains open . . . to resuming

the issuance of specialty license plates for members of

[Plaintiff,]” so long as an alternative license plate design not

containing the Confederate battle flag is agreed upon, (id.),

suggests that Defendants are not motivated by an improper

discriminatory intent against Plaintiff or its members.

Second, the speech cases in which the Supreme Court has

found equal protection violations feature public forums. See,

e.g., Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S.

37, 55 (1983); Police Dep’t of Chicago v. Mosley, 408 U.S. 92,

96 (1972); Carey v. Brown, 447 U.S. 455, 461 (1980). In

contrast, the license plates at issue here are not public

forums, indeed Walker explains that “forum analysis is

inapposite” in this factual context. 576 U.S. at 217. Rather,

the license plates contain government speech, supra Part

III.B.1, and therefore North Carolina may discriminate against

certain kinds of speech so long as such discrimination can

withstand rational basis review, see Perry, 460 U.S. at 55;

Shurtleff, 986 F.3d at 98 (“In the absence of a public forum—and

we have found none here—the City’s practice need only pass

rational basis review. Put another way, the practice need only

bear a rational relationship to some legitimate governmental

purpose.” (citation omitted)). Defendants’ rationale for

refusing to print license plates featuring the Confederate

battle flag is that those plates “have the potential to offend

those who view them.” (Compl. (Doc. 5) at 15.) This is

rationally related to North Carolina’s legitimate purpose of

respectfully celebrating the State’s diverse communities, and

hence undoubtedly exceeds the low bar of rational basis review.

Therefore, Plaintiff has failed to allege sufficient facts

to state a plausible equal protection violation, and Defendants’

motion to dismiss Plaintiff’s § 1983 claim will be granted as to

the equal protection allegations.10 Further, as the two other

constitutional violations underpinning Plaintiff’s § 1983 claim

also lack plausibility, this court will dismiss the claim in its

entirety. Finally, because the § 1983 claim is being dismissed—

as is the related declaratory judgment claim, supra note 6—there

are no grounds for Plaintiff to seek injunctive relief or

attorney fees, (Compl. (Doc. 5) ¶¶ 43—48, 58—59), and thus those

claims will also be dismissed.

IV. CONCLUSION

For the foregoing reasons, IT IS THEREFORE ORDERED that

Plaintiff’s Motion for Stay of Proceedings, (Doc. 18), is hereby

DENIED.

IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss in

Lieu of Answer, (Doc. 8), is hereby GRANTED and this action is

dismissed. A Judgment dismissing this action will be entered

contemporaneously with this Memorandum Opinion and Order.

10 Plaintiff acknowledges that the “North Carolina Supreme

Court interprets the state and federal equal protection clauses

synonymously.” (Pl.’s Br. (Doc. 10) at 14 (citing Frye v.

Brunswick Cnty. Bd. of Educ., 612 F. Supp. 2d 694, 706 (E.D.N.C.

2009)).) Therefore, to the extent Plaintiff has also alleged an

equal protection violation under North Carolina’s Constitution,

(see Compl. (Doc. 5) ¶ 55), that claim will likewise be

dismissed.

This the lst day of March, 2022.

LA; fir

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