Petition for Writ of Certiorari — Florida Department of Highway Safety & Motor Vehicles v. Sims

Supreme Court brief1989

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IN THE :

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

and CHARLES J. BRANTLEY, DIRECTOR

DIVISION OF MOTOR VEHICLES,

Petitioners,

vs.

MYRA HOLLADAY SIMS and FLORIDA

IMPORT AND COMPLIANCE ASSOCIATION,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS,

ELEVENTH CIRCUIT

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

ERIC J. TAYLOR

Assistant Attorney General

Counsel of Record

Office of the Attorney General

The Capitol

Tallahassee, FL 32399-1050

(904) 487-2142

Attorneys for Petitioners

t¢ >

QUESTIONS PRESENTED

Whether Edleman v. Jordan, 415 U.S.

651 (1974) and Ford Motor Co. vy.

Department of the Treasury, 323 U.S.

459 (1945), foreclose the holding of

the Court of Appeals that the State

of Florida waived its Eleventh

Amendment immunity simply because it

did not raise the Eleventh Amendment

until appeal and was represented by

the State's Attorney General below?

And, whether the Court of Appeals

properly added, sua sponte, aS a

defendant, the Director of the

Division of Motor Vehicles, Florida

Department of Highway Safety and

Motor Vehicles, in contravention of

the Federal Rules of Civil Procedure,

to avoid the Eleventh Amendment bar?

Whether the Clean Air Act, 42 U.S.C.

§7521, et seq., regulating automobile

emissions, preempts state regulation

of automobile to the extent that a

state may not refuse to provide to

the import vehicle owner the state's

grant of permission, in the form of a

title and registration, to operate

the vehicle on the public highways

when the imported vehicle owner

cannot show the vehicle has_ been

certified by the Environmental

Protection Agency as meeting

applicable standards and which may

not be lawfully operated until such

certification has been issued?

Whether Respondents had standing to

challenge Section 320.02(9), Florida

Statutes (1985), prohibiting the

issuance of title to and registration

of their automobiles when the

vehicles could not be lawfully

Operated under the Clean Air Act and

implementing regulations until

approval was receieved from_ the

Environmental Protection Agency?

Whether the Court of Appeals properly

refused to sever the valid provisions

of Section 320.02(9), Florida

Statutes (1985), from the invalid,

thereby striking the entire law and

denying the State of Florida the

ability to deny title to and

registration of vehicles not in

compliance with the federal Motor

Vehicle Safety Act, 15 U.8.¢. $1381,

et seg., which the court had found

did not preempt state law?

PARTIES TO THE PROCEEDINGS BELOW

Plaintiffs/Appellees/Respondents:

Myra Holliday Sims

Florida Import and Compliance

~._ Association

Sees

Site ee

nek,

Defendant/Appellant/Petitiener:

State of Florida, Departmen of

Highway Safety and Motor Vehicles

Charles J. Brantley, Director,

Division of Motor Vehicles, Florida

Department of |. Highway Safety and

Motor Vehicles iy

yy Mr. Charles Brantley is listed as a

party below as he is the Director of Motor

Vehicles of the Florida Department of

Highway Safety and Motor Vehicles and,

thus, the state official the in banc

majority added as a party, sua sponte, in

their opinion of January 11, 1989. Sims v.

State of Florida, Department of Highway

Safety and Motor Vehicles, 862 F.2d 1449,

1460 (llth Cir. 1989). Mr Brantley was not

a party in the district court nor in any of

the proceedings before the Court of

Appeals.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED i

PARTIES TO THE PROCEEDINGS

BELOW i |

TABLE OF AUTHORITIES vi

OPINIONS BELOW 1

JURISDICTION 2

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED 3

STATEMENT OF THE CASE 4

REASONS FOR GRANTING THE WRIT 14

I. THE ELEVENTH AMENDMENT OF

THE UNITED STATES

CONSTITUTION BARS FEDERAL

COURT JURISDICTION IN

THIS CASE 14

II. THE CLEAN AIR ACT DOES

NOT PREEMPT THE STATES'

TRADITIONAL REGULATION

OF THE HIGHWAYS WHEN A

STATE REQUIRES PROOF OF

COMPLIANCE WITH .THE CLEAN

AIR ACT PRIOR TO

PERMITTING USE OF THE

VEHICLE ON THE PUBLIC

HIGHWAYS 29

III. RESPONDENTS LACK STANDING

TO CHALLENGE SECTION

320.02(9), FLORIDA STATUTES

IV. THE COURT OF APPEALS WAS

REQUIRED TO EXAMINE THE

SUBJECT STATUTE TO DETERMINE

IF THE INVALID PROVISIONS

COULD BE SEVERED FROM THE

VALID PROVISIONS

CONCLUSION

APPENDIX

APPENDIX INDEX

TABLE OF AUTHORITIES

Cases Page

Alaska Airlines, Ince. v. Brock,

U.S.

pea

07 S.Ct. 1476 (1987) Yaad

Allen v. Louisiana,

103 U.S. 80 (1881) 56

Bank of Hamilton v.

Dudley's Lessee,

27 U.S. (Pet.) 492 (1892) 55

Broadwick v. Oklahoma,

413 U.S. 601 (1973) 55

Brockett v. Spolane Arcades,

Inc., 742 U.S. 491 (1985) 55,5 38

Buckley v. Valeo,

424 U.S. 1 (1968) 56, 58

C.I.R. v. Engle,

464 U.S. 206 (1984) 37

California Federal Savings

and Loan Ass'n v. Guerra,

Use » 1407 &.Ct 683

(1987) 31h, 32, 36

Carter v. Carter Coal Co.,

298 U.S. 38 (1936) 59

Champlin Refining Co. v.

Corporation Commission

of Oklahoma,

286 U.S. 210, (1932) 58

City of Hartford v.

Town of Glastonburg,

561 F.2d 1032 (2nd Cir. 1977) 46

Clark v. Barnard,

108 U.S. 436 (1883) 18

Clements v. Flashing,

547 U.S. 957 (1982) 51

Cory v. White,

457 U.S. 85 (1982) 17

Cramp v. Board of Public

Instruction of Orange County,

137 So.2d 828 (Fla. 1962) 59

Direct Automobile

Imports Association,

Inc. v. Townsley,

804 F.2d 1408

(Sth Cir. 1986) 50, 61, 62

Dugan v. Rank,

372 U.S. 609 (1963) 17

Eastern Air Lines v.

Department of Revenue,

455 So.2d 317 (Fla. 1984) 56, 59

Edleman v. Jordan,

415 U.S. 651 (1974) 17, 18, 20

aise 22, 24s Oe

El Paso & Northeastern

R. Co. v. Gutierrez,

2i5 U.S- BSF (ives) 55, 36

Erznoznik v. City of

Jacksonville,

422 U.S. 205 (1975) Si, Sa

vii

Estate of Ritter v.

University of Michigan,

851 F.2d

846

(6th Cir. 1988)

Ex Parte Young,

209 =#4U.S.

123 (1908)

Fidelity Federal Sabings

and Loan Ass'n v.

Cuesta,

458 U.S.

Fincher v.

141 (1982)

State of Florida

Department of Labor,

798 F.2d

1371

(llth Cir. 1986)

Florida Lime & Avocado

Growers,

ane. Vs

Paul,

373 U.S.

132 (1963)

Ford Motor Co. v.

Department of Treasury,

323 U.S.

Gamble v. Florida Department

459 (1945)

of Health and Rehabilitative

Services,

Georgia Automobile Importers

779 F.2d 1509

(llth Cir. 1986)

Compliance Association

v. Bowers,

639 F.Supp. 352

(N.D. Ga.

Gibbons v.

1986)

Ogden,

9 Wheat.

1 (1824)

viii

34,

30,

40,

17,

Hillsborough County v.

Automated Medical Labs,

471 U.S. 707 (1985) 31-34

Hines v. Davidowitz,

312 U.S. 52 (1941) 30, Jae 22

34, 40, 41

I.N.S. v. Chadha,

462 U.S. 919 (1983) 57

Industrial Fire & Casulty

Insurance Co. v. Kwechin,

447 So.2d 1337 (Fla. 1983) 52

J. DeBartolo Corp. v.

Florida Gulf Coast

Bldg. and Const.

Trades Council,

i 2 , 108 S.Ct. 1392 (1988)

Jones v. Rath Packing Co.,

430 U.S. 512 (1977) 32, 34

Manatee Conty v. Town of

Longboat Key,

356 So.2d 143 (Fla. 1978) 19

Michigan Canners and Freezers

Assoc., Inc. v. Agriculture

Marketing and Bargaining Board,

467 U.S. 461 (1984) 34

National R.R. Passenger Corp.

v. Atchinson, Topeka & Santa Fe

Ry. Corp.,

470 U.S. 451 (1985) 51

Pacific Gas & Electric Co. v.

Energy Resources Commission,

461 U.S. 190 (1983)

Palmer v. Ohio,

248 U.S. 32 (1918)

Papisan v. Allian,

478 U.S. 265 (1986)

Pennhurst State School &

' Hospital v. Halderman,

465 U.S. 89 (1984)

‘Perry v. Commerce Loan Co.,

383 U.S. 392 (1966)

President's Commission on

Organized Crime v. Scaduto,

763 F.2d 1191 (llth Cir. 1985)

Rector of Holy Trinity Church

v. United States,

143 U.S. 457 (1892)

Regan v. Time, Inc.,

468 U.S. 653 (1984)

Regents of the University

of California v. Bakke,

438 U.S. 265 (1978)

Rice v. Santa Fe

Elevator Corp.,

331 U.S. 218 (1947)

Scheinberg v. Smith,

659 F.2d 476 (5th Cir. 1981,

rehearing den'd,

667 F.2d 93 (5th Cir. 1981)

17,

32,

St. Martin Evanglical

Luthern Church v. South Dakota,

451 U.S. 7/2 (1981)

State v. Champe

373 So.2d 874 (Fla.

State v. Lee,

356 So.2d 276 (Fla.

Tilton v. Richardson,

S03. Uses Oia tana)

Time, Inc. ¥. Bill,

385 U.S. 374 (1976)

Tuveson v. Florida

1978)

1978 (

Governor's Council on

Indian Affairs, Inc.,

734 F.2d 730 (lith Cir. 1984)

U.S. v. Jackson,

390 U.S. 570 (1968)

Valley Forge Christian Coliege

195 £2

56, 37

v. Americans United for Separation

of Church and State,

454 U.S. 464 (1982)

Vildibill v. Johnson

492 So.2d 1047 (Fla.

Warth v. Seldin,

422 U.S. 490 (1975)

1985)

Welch v. State Department of

Highways, U.S.

’

107 S.Ct. 2941 (1987)

44-46

CONSTITUTIONAL PROVISIONS,

AND RULES

UNITED STATES CONSTITUTION:

Supremacy Clause,

Art. I, Clause 2

Commerce Clause,

Act I, Sec. 8, Cis 3

Eleventh Amendment

UNITED STATES CODE

15 U.S.C. §1381 et seq.

15 U.S.C. §1397

28 U.S.C. §1254(1)

42 U.S.C. §7521, et seq.

42 U.S.C. §7522

42 0.8.C. $7524

42 U.S.C. §7543 (a)

CODE OF FEDERAL REGULATIONS

19 C.F.R. §12.73

40 C.F.R. §85.1507

40 C.F.R. §85.1508

40 C.F.R. Part 85

FLORIDA CONSTITUTION:

Article X, Section 13,

Xii

STATUTES,

3, 4, 6

6, 38, 47 48

29, 30, 36

3, 38, 47

38, 47

FLORIDA

Section

Florida

Section

Florida Statutes (1987)

STATUTES

320.02(9),

Statutes, (1985)

768.28(16),

xiii

passim

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See

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

and CHARLES J. BRANTLEY, DIRECTOR,

DIVISION OF MOTOR VEHICLES,

Petitioners,

vs.

MYRA HOLLADAY SIMS and FLORIDA

IMPORT AND COMPLIANCE ASSOCIATION,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS,

ELEVENTH CIRCUIT

OPINIONS BELOW

The following opinions and orders of

the lower courts are included in the

Appendix to the Petition:

le Opinion of the United States

District Court, Northern District

of Florida rendered on December

31, 1985.

2 Opinion of the United States

Court of Appeals for the Eleventh

Circuit, rendered on December 2,

1987 and reported at 832 F.2d

as Order of the United States

Court of Appeals for the Eleventh

Circuit rendered on March 1, 1988

and reported at 840 F.2d 778,

vacating that court's decision of

December 2, 1987.

4. Opinion of the United States

Court of Appeals for the Eleventh

Circuit, in banc, rendered on

January 11, 1989 and reported at

862 F.2d 1449.

Opinion of the United States

Court of Appeals for the Eleventh

Circuit, in banc, rendered on

March 2, 1989, denying

Petitioner's Motion for Rehearing

in Banc.

JURISDICTION

The opinion of the United States Court

of Appeals for the Eleventh Circuit, in

banc, was rendered on Junuary 11, 1989.

The Department's timely motion for

rehearing, in banc, reprinted in the

Appendix, was denied on March 2, 1989. The

Court of Appeals' mandate was issued on

March 13, 1989 and is reprinted in the

Appendix.

Petitioners invoke the jurisdiction of

this Court under 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

This case involves the United States

Constitution's Supremacy Clause, U.S.

Const. art. VI, clause 2; Commerce Clause,

U.S. Const. art. I, sec. 8, cl. 33 Att. Iii

and the Eleventh Amendment. The case also

involves the Clean Air Act, 42 U.S.C.

§7521, et seq., its applicable regulations

19 C.F.R. §12.73 and 40 C.F.R. Part 85, the

Motor Vehicle Safety Act, 15 U.S.C. §1397

and §320.02(9), Fla. Stat., (1985). All

such Constitutional provisions, statutes

and regulations are reprinted in the

Appendix.

STATEMENT OF THE CASE

Section 320.02(9), Florida Statutes

(1985) requires that all vehicles not

manufactured in accordance with the Federal

Clean Air Act, 42 U.S.C. §7521 et seq., and

the Motor Vehicle Safety Act, 15 U.S.C.

§1381 et seg., must be in compliance with

the two federal acts before the vehicles

can be sold to consumers, titled or

registered in Florida. Proof of this

compliance is evidenced by a letter from

the United States Customs Service (Customs)

or letters from the United States

Department of Transportation (DOT) and the

United States Environmental Protection

Agency (EPA),

The Respondent, Florida Import and

Compliance Association (FICA) is an

unincorporated association of business

entities that import foreign vehicles that

do not, at the time of importation, meet

federal air pollution and safety

standards. The members of FICA are in the

business of converting or modifying these

non-complying vehicles to meet the federal

air and safety standards. Respondent, Myra

Holladay Sims (Mrs. Sims), is a citizen and

resident of Florida. Petitioner, Florida

Department of Highway Safety and Motor

Vehicles (Department), is the agency of the

State of Florida responsible for the

titling and registration of motor vehicles

in Florida. Petitioner, Charles J.

Brantley, is the Director of the Division

of Motor Vehicles of the Florida Department

of Highway Safety and Motor Vehicles.

On April 30, 1985, Mrs. Sims purchased

a used 1976 Mercedes’ Benz 450 SEL

(Mercedes) from a Ulrich Kiesewalter of

Bonn, West Germany. The car wasS exported

from Europe on April 6, 1985 and imported

into the United States at Jacksonville,

Florida, on April 30, 1985. The actual

sale of the vehicle took place upon its

arrival in Jacksonville.

Under federal law, a vehicle not

manufactured in accordance with the Clean

Air Act, 42 U.S.C. §7521 et seq., or the

Motor Vehicle Safety Act, 15 U.S.C. §1381,

et seg., may not be imported into the

United States. See, 42 U.S.C. §7522 and 15

U.S.C. §1397. Customs permits physical

presence of vehicles not manufactured in

accordance with the two laws into the

country for the sole purpose of

modification. However, until the _ two

federal laws are fully complied with, the

vehicle is not "legally" within the United

States for unrestricted use. Because of

the two laws and Customs regulations, Mrs.

Sims posted a Customs Bond and notified

both EPA and DOT's National Highway Traffic

Safety (NHTSA) of her importation of a non-

conforming vehicle.

Mrs. Sims received a letter of

exemption from EPA on June 3, 1985, stating

that her car did not have to be converted

or modified as long as she met EPA's stated

requirements. Mrs. Sims’ received this

letter because her vehicle fit into one of

EPA's exemptions from physical

modification.

On June 3, 1985, Mrs. Sims submitted

her Safety Act conversion documentation to

NHTSA. At that time, however, NHTSA lacked

sufficient staff to quickly process the

back'og of pending gray market vehicle

paperwork. In fact, at the time this

lawsuit was instituted, importers’ were

waiting up to nine (9) months after

submitting the paperwork to receive proof

of compliance.

Mrs. Sims attempted to obtain Florida

title and registration documents for her

1976 Mercedes Benz from the State of

Florida. However, due to the NHTSA

paperwork backlog, she was unable to

produce the documents required by Florida

law. Therefore, the Department refused to

title or register her car until she could

produce letters of compliance from both EPA

and from NHTSA or Customs.

Respondents' complaint was filed on

July 25, 1985. The complaint alleged that

Section 320.02(9), Florida Statutes (1985),

waS unconstitutional because it violated

the Supremacy and Commerce Clauses of the

United States Constitution. The complaint

sought declaratory and injunctive relief.

A final hearing/trial was held by the

district court on September 12, 1985, and

the court issued its Order and Final

Judgment on December 30, 1985, finding that

Section 320.02(9) was unconstitutional as

it was preempted by both federal acts. 2/

The case was appealed to the United States

Court of Appeals for the Eleventh

Circuit. The case was briefed and oral

argument heard in September, 1986 on the

issue of preemption.

Subsequent to oral argument, the panel,

by letter of February 18, 1987, notified

the parties that it wished further briefing

on a list of questions prepared by the

panel. Two of the five questions raised by

the panel were whether the Eleventh

Amendment barred the action then pending

before the court and whether the

2 Unbeknown to the Department at the

time, Mrs. Sims received her letter of

compliance from NHTSA on September 18,

1985, a week after the trial and three

months before the district court's

decision. This fact did not come to light

until September 28, 1986 during oral

argument before the panel.

Respondents had standing to challenge the

Florida statute. The Department responded

by asserting its Eleventh Amendment

immunity, and that the Respondents did not

possess standing to challenge the Florida

law.

The Eleventh Circuit panel, by a

decision of 2-1, reversed in part and

affirmed in part the final order of the

district court and remanded the case for

further proceedings consistent with its

decision. Its decision was reported at 832

nied

F.2d 1558 (11th Cir. 1987). 3/

On December 21, 1987, the Petitioner

filed a Petition for Rehearing and

Suggestion for Rehearing In Banc with the

court. On March 1, 1988, the Court granted

the Appellant's Petition and ordered a

rehearing in banc. 840 F.2d 778 (llth Cir.

1988). The case was rebriefed on all the

issues raised and decided before the panel.

3/ While noting that Florida law

requires a statute to waive sovereign

immunity and that no- statute existed

waiving the state's immunity in this case,

the panel did not directly rule upon the

Petitioner's Eleventh Amendment immunity

defense. 832 F.2d at 1569-70. Rather, the

panel decided to remand the case to the

district court to determine if the

Respondents should be granted leave to add

the appropriate individual official. Id.

at 1570. However, the panel denied the

Respondents' request to add individual

state officials in the appellate case, Id.,

n. 15, a decision the majority decided not

to follow in the in banc opinion.

On January 11, 1989, the Court of

Appeals issued its in banc opinion. Sims

v. State of Florida, Department of Highway

Safety and Motor Vehicles, 862 F.2d 1449

(llth Cir. 1989). The decision found that

Section 320.02(9) was not preempted by the

Safety Act but was preempted by the Clean

Air Act. However, the court struck the

entire law without making any attempt to

determine if the invalid portion of Section

320.02(9) could be severed from the

remaining valid provision and upheld. In

addition, the Court of Appeals determined

the Eleventh Amendment was waived by the

Department for a variety of # reasons

including that it raised the immunity

defense late in the proceedings and and

there was a lack of prejudice to the stae

officials since the Florida Attorney

General had represented the state

throughout. Finally, the court ruled that

the Respondents did have standing’ to

challenge the Florida law.

On January 27, 1989, the Petitioner

moved for rehearing in banc asking the

court to determine whether it was possibie

to sever the valid provisions of Section

320.02(9). The Court of Appeals denied the

motion for rehearing on March 2, 1989.

JURISDICTION IN THE COURT OF

FIRST INSTANCE

Jurisdiction was based in the United

States District Court for the Northern

District Of Florida upon federal question

juridiction under 28 U.S.C. §1331. The

Respondents sought declaratory and

injunctive relief under 28 U.S.C. §§2201,

2202.

REASONS FOR GRANTING THE WRIT

THE ELEVENTH AMENDMENT OF THE

UNITED STATES CONSTITUTION BARS

FEDERAL COURT JURISDICTION IN THIS CASE.

This case was filed by the Respondent

against the State and its Department of

Highway Safety and Motor Vehicles. No

individual state official was ever a named

party to the action. The Court of Appeals

ruled that the Petitioner waived its

immunity under the Eleventh Amendment for

the reason that it would be an abuse of

discretion if, on remand, the district

court should deny a motion to add as a

defendant a named official. 862 F.2 at

1460.

The court found this waiver because the

Petitioner had ia raised the immunity

defense at trial or initially on appeal and

that the State was not prejudiced by the

lack of a named piticial because the

Florida Attorney General represented the

State's interest throughout the case. Id.,

at 1460 and n. 16. To avoid the Eleventh

Amendment bar, the Court of Appeals added

Mr. Charles J. Brantley, Director of the

Division of Motor Vehicles and announced

that the Eleventh Amendment’ had _ been

satisfied. ta. 4

The issues raised by the in banc

decision are cf great importance to the

States. Not only does the in banc decision

conflict with all decisions of this Court

but it also directly conflicts with a

4) Subsequent to the immunity defense

being raised by the three judge panel, the

Respondents moved to add the Director of

the Petitioner as a party. The panel

denied that motion on May 27, 1987. The

Respondents did not move to add the

Director before the in banc court. The in

banc majority added the Director on their

Own motion.

decision of the Sixth Circuit Court of

Appeals involving nearly identical facts

and the same issues.

The decision below is in direct

conflict with this Court's decisions on

when the Eleventh Amendment immunity

defense may be raised and how the immunity

defense is to be resolved when it is raised

for the first time on appeal. The decision

also recognizes an unprecedented form of

waiver (no prejudice because a state or one

of its agencies is represented by the

state's attorney general) and a new remedy

to correct the failure to properly name a

state official (sua sponte naming the head

of the state agency involved). The naming

of a state official at the appellate level

also runs afoul of the Due Process Clause

as the state official is denied any

Opportunity to be heard. See, 862 F.2d

1469, Tjoflat, J., dissenting.

There is no question that, as a general

rule, a state or one of its agencies,

cannot be sued in federal court without its

consent. Welch v. State Department of

Highways, U.s. , £07 S.Ct. 2941

(1987); Pennhurst State School & Hospital

v. Halderman, 465 U.S. 89, 100 (1984);

Dugan v. Rank, 372 U.S. 609 (1963); Ford

Motor Co. v. Department of Treasury, 323

U.S. 459 (1945). This is a jurisdictional

bar which applies regardless of the nature

of the relief sought. Papisan v. Allian,

478 U.S. 265 (1986); Pennhurst, 465 U.S.,

at 100; Cory v. White, 457 U.S. 85 (1982)

(injunctive relief). And, important for

this case, the Eleventh Amendment may be

raised at any time, Edleman v. Jordan, 415

U.S. 651 (1974), including for the first

time on appeal. Ford Motor Co., supra.

While a state may consent to suit in

federal court, Pennhurst, 465 U.S., at 99;

Clark v. Barnard, 108 U.S. 436, 447 (1883),

the state's consent must be unequivocal;

Pennhurst, 465 U.S., at 99; Edelman ov.

Jordan, 415 U.S. at 673. A waiver of the

state's immunity must be explicitly

authorized by the state in its constitution

or laws. Palmer v. Ohio, 248 U.S. 32, 43

(1918). Only the state itself may decide

when and where to waive its’ immunity.

Pennhurst, 465 U.S., at 99. 3/

bd There is an important exception to

the general rule. A suit challenging the

constitutionality of a state official's

actions is not a suit against the state.

Pennhurst, 465 U.S., at 102; Ex Parte

Young, 209 U.S. 123 (1908). As a state

could not enact an’ unconstitutional law,

the official was stripped of his official

cloak and was subject to injunctive

action. Id. But, the action must be

brought against the state official, not the

state.

The State of Florida has not waived its

Eleventh Amendment immunity. The sovereign

immunity of Florida can only be waived by

the Florida Legislature. Article xX,

Section 13, Florida Constitution; Tuveson

v. Florida Governor's Council on Indian

Affairs, Inc., 734 F.2d 730, 734 (llth Cir.

1984); Manatee County v. Town of Longboat

Key, 356 So.2d 143, 147 (Fla. 1978).

Furthermore, the Eleventh Circuit has ruled

in other cases that the Florida Legislature

had not legislatively waived the State's

immunity in federal court. 6, See, Fincher

v. State of Florida Department of Labor,

796 F.2d A371, i3d%#2 (1ith Cir. i986);

Gamble v. Florida Department of Health and

Rehabilitative Services, 779 F.2d 41509

67 Ironically, as stated in footnote 3,

infra, these were the same conclusions

reached in the panel decision. See, Sims,

832 F.2d at 1569.

(llth Cir. 1986). The Florida Legislature

has expressly reserved the State's, and its

agencies', Eleventh Amendment immunity.

Section 768.28(16), Florida Statutes

(1987). The Legislature has not authorized

the Florida Attorney General to waive

Florida's immunity in any case in which he

may appear on behalf of the State or one of

its agencies. Therefore, Florida's

Eleventh Amendment immunity could not and

was not waived by the appearance of the

Attorney err | defending this action

below.

The Court of Appeals ruled that the

State waived its Eleventh Amendment

immunity because it did not raise the

defense at trial or initially upon

appeal. Such a ruling negates the holdings

of this Court that the Eleventh Amendment

"need not be raised in the trial court",

Edleman v. Jordan, 415 U.S. at 678, and

that the Eleventh Amendment immunity can

even be raised for the first time on

appeal, Ford Motor Co., 323 U.S. at 466-

467. In both cases, the immunity defense

was not raised at trial.

In Ford Motor Co., the State of Indiana

did not assert its Eleventh Amendment

immunity until the case reached this

Court. Ford Motor Company argued that

Indiana had thus waived its Eleventh

Amendment immunity defense. This Court

rejected that argument saying:

the objection to petitioner's suit

as a violation of the Eleventh

Amendment was first made and

argued by Indiana in this Court.

This was in time, however. The

Eleventh Amendment declares a

policy and sets forth an explicit

limitation on federal judicial

power of such compelling force

that this Court will consider the

issue arising under this Amendemnt

in this case even though urged for

the first time in this Court.

Ford Motor Co., 323 U.S. at 466-67. This

Court reaffirmed that holding in Edleman v.

Jordan, supra. There the Illinois

officials failed at the district court to

raise the immunity defense after being

sued. The Court reaffirmed that’ the

Eleventh Amendment defense could be raised

for the first time either on appeal before

a circuit court or before this Court. Id.,

415 U.S. at 677-78.

The decision of the Court of Appeals

below is also in direct conflict with a

decison of the Sixth Circuit Court of

Appeals on the same issue of waiver. In

the case of Estate of Ritter v. University

of Michigan, 851 F.2d 846 (6th Cir. 1988),

the Sixth Circuit was faced with a factual

situation nearly identical to that

presented here. The University of Michigan

Board of Regents was sued in the Michigan

Court of Claims. No individual officials

of the Board were named in the action.

Id., 851 F.2d at 849. The Board removed

the case to federal district court and

defended the case on the merits, failing to

assert its Eleventh Amendment’ immunity.

Id. The district court granted summary

judgment for the Board on the merits and

the plaintiff appealed. Id. at 848. The

case was briefed and argued on its merits

before the appellate court. Id. At oral

argument, the Court of Appeals, raised the

question of the Board's Eleventh

Amendment. Id. Counsel were requested to

file supplemental briefs on the issue and

the Board's counsel responded by asserting

the Eleventh Amendment immunity defense.

Id. The plaintiff responded by asserting

the Board had waived the immunity defense

by removing the case and not raising the

immunity defense earlier. Id. The Court

of Appeals rejected the plaintiff's

arguments. Relying on the decisions of

this Court in Ford Motor Co. and Edleman v.

Jordan, it ruled that the Board had not

waived its immunity as the Eleventh

Amendment defense could be raised at any

time. Id. at 851. The court also ruled

that a state's appearance and defense on

the merits was no bar to the immunity

defense. Id. at 852. This case factually

is no different than Ritter.

_ In this case, Court of Appeals also

ruled that the Petitioner could not assert

the Eleventh Amendment immunity defense,

finding that the State and it officials

were not prejudiced because the Florida

Attorney General represented the Petitioner

throughout the proceeding. vy Neither this

7) The Court of Appeals also stated that

the Department did not strongly urge the

immunity issue before the in banc court.

To the contrary, the Department’ fully

briefed the issue in its briefs to the in

banc court and strongly believes in its

position.

Court, nor any other court, has ever ruled

that "lack of prejudice to the state or its

officials" was a proper ground for

disregarding the express provisions of the

Eleventh Amendment. 8,

As this ruling is without precedent,

this Court's review is imperative because

Since nearly ail states use their attorneys

general, or other state employed attorneys,

to defend actions against the state and its

agencies, If such a ruling were allowed to

stand, every time an attorney general

appeared, defended on the merits and failed

to raise the immunity issue at trial, he

would waive it for that state, thereby

Interestingly, the Eleventh Circuit,

n an earlier case, rejected the argument

that the appearance of the Florida Attorney

General, on behalf of Florida, waived the

State's immunity. Tuveson v. Florida

Governor's Council on Indian Affairs, Inc.,

734 F.2d at 734.

negating the holdings of this Court. See,

Edleman v. Jordan, 415 U.S. at 677-78. See

also, Estate of Ritter v. University of

Michigan, 851 F.2d at 852.

The Court of Appeal's attempt to

circumvent the Eleventh Amendment by the

Sua sponte addition of a state official

runs counter to the the Federal Rules of

Civil Procedure. The action of the Court of

Appeals contarvenes Rule 21 on the addition

of parties and Rule 43 on the substitution

of parties. There is no precedent for the

action of the Court of Appeals to correct

the failure of the Respondent to name the

proper party.

Finally, the decision below denies the

state official added by the in banc court,

Petitioner Charles J. Brantley, his

constitutional right to due process of

law. See, 862 F.2d 1469, Tjoflat, J.,

dissenting. The newly named official wouid

not be served with the complaint in the

case; would not have a right to assert any

defenses he may have to the issues in the

case; and may likely be saddled with a

legal position advanced by the state

attorney general that he may disagree

with. This lack of basic due process has

never been condoned by this Court and has

never been a consequence of asserting a

state's Eleventh Amendment immunity.

For these many reasons, this Court

should take jurisdiction of this case and

decide whether a state's Eleventh Amendment

immunity is waived when not raised until

appeal or where the court finds a "lack of

prejudice"; whether the sua sponte addition

of an individual at the appellate level is

constitutionally permissible and in

accordance with federal rules of procedure;

and the rights of a state official to due

process when he was not a party to the

action in the trial court. The Petitioners

request that this Court reverse’ the

judgment of the Court of Appeals and order

the case remanded to the district court and

dismissed.

II.

THE CLEAN AIR ACT DOES NOT PREEMPT THE

STATES" TRADITIONAL REGULATION OF THE

HIGHWAYS WHEN A STATE REQUIRES PROOF

OF COMPLIANCE WITH THE CLEAN AIR ACT

PRIOR TO PERMITTING USE OF THE

VEHICLE ON THE PUBLIC HIGHWAYS

The Eleventh Circuit ruled that Section

320.02(9), Florida Statutes (1985), was

preempted by the express language in 42

U.S.C. §7543(a) as Congress intended to

exclusively regulate emission standards.

862 F.2d at 1455. The Court of Appeals

erred, however, in their determination of

what "field" Section 320.02(9) regulated.

The court inexplicably decided the Florida

law was intended to regulate air

emission. The Department submits’ that

Section 320.02(9) is a valid police power

law ceguleting the use of automobiles on

public highways. Section 320.02(9) does

not regulate any air emission standards

and, therefore, is not preempted by the

Clean Air Act.

By enacting the Clean Air Act, Congress

did not intend to preempt the states'

traditional police power of regulating the

use of the public highways. Rather than

finding express preemption under 42 U.S.C.

§7543(a), the Court of Appeals should have

determined whether the State's regulation

of highways interfered with the federal

scheme by using the tests set forth by this

Court in Florida Lime & Avocado Growers,

Inc. v. Paul, 373 U.S. 132 (1963) and Hines

v. Davidowitz, 312 U.S. 52 (1941). Had the

court applied Section 320.02(9) to the

principles of this Court, it would have

discovered that the Florida law does not

stand as an obstacle to the objectives of

Congress or make physical compliance with

the federal law an impossibility.

This case appears to be one of first

impression before the Court. Because it

effects the relationship between the states

and the federal government concerning the

States’ ability to prevent a violator of

federal law from continuing his violation,

it is important for all the states.

The federal preemption of state laws

has its roots in the Supremacy Clause of

the United States Constitution. See,

Fidelity Federal Savings and Loan Ass'n v.

Cuesta, 458 U.S. 141, 151 (1982). The

clause "invalidates state laws that

interfere with, or are contrary to federal

law." Hillsborough County, Florida v.

Automated Medical Laboratories, Inc., 471

U.S.707, 712 (1985), quoting Gibbons v.

Ogden, 9 Wheat. 1, 211 (1824).

The primary task in reviewing a state

law to determine if the law is preempted is

to "ascertain the intent of Congress."

California Federal Savings and Loan Ass'n

v. Guerra, Us8s , 107 S.Ct 683, 689

(1987). Preemption is not to be lightly

presumed. Id., 107 S.Ct. at 689. Because

of the effect of preemption, there is a

presumption that "State or local regulation

of matters related to health and safety is

not invalidated under the Supremacy

Clause." Hillsborough County v. Automated

Medical Labs, 471 U.S. at 715.

"Where . . . the field that

Congress is said to have pre-

empted has been’ traditionally

occupied by the States we start

with the assumption that the

historic police powers of the

States were not to be superseded

by the Federal Act unless that was

the clear and manifest purpose of

Congress.'" Jones v. Rath Packing

Co., 430 U.S., at 525, 97 S.Ct.,

at 1309 (quoting Rice v. Santa Fe

Elevator Corp., 331 U.S., at 230,

67 &.Ct., a& L152).

State law may be preempted in any one

of three ways, first

Congress iS empowered to preempt

state law by so stating in express

terms. Jones v. Rath Packing Corp.,

430 U.8. S19, 525, 97 Been Aoeos

1309 (1977);

Hillsborough, 471 U.S. at 713. Second,

In the absence of express pre-emptive

language, Congress" intent to pre-

empt all state law in a particular

area may be inferred where the scheme

of federal regulation is sufficiently

comprehensive to make reasonable the

inference that Congress “left no

room" for supplementary state

regulation. Rice v. Santa Fe

Elevator Corp., 331 U.S. 218, 230 67

S.Ct. 1146, 1152, 91 L.Ed. 1447

(1947). Preemption of a whole field

is one in which "the federal interest

is so dominant that the federal

system will be assumed to preclude

enforcement of state laws on the same

subject.” Ibid; see Hines _v.

Davidowitz, 312 U.S. 52, 61 S.Ct.

399, 85 L.Ed. 581 (1941).

Id. And finally,

Even where Congress has not

completely displaced state regulation

in a specific area, state law is

nullified to the extent that it

actually conflicts with federal

law. Such a conflict arises when

‘compliance with both federal and

state regulations is a physical

impossibility,' Florida Lime _ &

Avocado Growers, Inc. v. Paul, 373

U.S. 132, 142-143, 83 S.Ct. 1210,

1217-1218, 10 L.Ed.2d 248 (1963), or

when state law "stands as an obstacle

to the accomplishment and execution

of the full purposes and objections

of Congress," Hines v. Davidowitz,

Supra, 312 U.S., at 67, 61 S.Ct., at

404.

Id. See also, Michigan Canners and

Freezers Assoc., Inc. Vv. Agriculture

Marketing and Bargaining Board, 467 U.S.

461, 469 (1984).

In determining whether a federal law

preempts state law, a court must first

consider what "fields" the respective laws

regulate. If the fields of regulation are

separate and distinct, preemption can be

neither express, see, Jones v. Rath Packing

Co., Supra, nor implied, see, Rice v. Santa

Fe Elevator Corp., supra. In a case such

as this, where the state and federal laws

regulate two entirely different fields, a

court can only find preemption if the state

law fails either of the tests of Florida

Lime or Hines, that is, the state law

directly conflicts with the federal law or

the state law stands as an obstacle to the

purposes and objectives of Congress.

There are two separate and distinct

"fields" of regulation involved in this

case. Section 320.92(9) regulates whether

certain types of automobiles will be

permitted upon Florida's highways. The

Clean Air Act regulates air emissions

produced by automobiles by setting certain

Standards for new’ vehicles. ~ Section

320.02(9) does not create or enforce air

emission standards.

Since Section 320.02(9) does not enter

into the "field" of regulation of emission

Standards, there can be no express or

implied preemption coming from the Clean

Air Act. The determinative question is

then whether Section 320.02(9) "stand[s] as

an obstacle to the accomplishment’ and

execution of the full purposes and

objectives of Congress" or makes compliance

with the Clean Ajir Act a physical

impossibility. The Petitioner Department

asserts that Section 320.02(9), Florida

Statutes (1985) does neither.

To make that determination, it must

first be decided what was the intent of

Congress in enacting the Clean Air Act.

California Federal Savings and Loan, 107

s.Ct. at 689. The Department submits the

obvious intent of Congress in enacting the

Clean Air Act was to prevent the use of any

new vehicle which did not meet certain air

emission standards. In attempting to

improve air quality, Congress set uniform,

nationwide standards thus preventing

(preempting) local and state governments

from enacting or enforcing their own

emission standards. prior to the original

sale of the vehicle.

While it is thus clear that Congress

intended that the states were not to create

or enforce their own emission standards, it

by no means follows that Congress intended

to prevent (preempt) the states from

keeping known violators of the Clean Air

Act off the states' roads by refusing to

title and register such vehicles. This

Court has long held that statutes are not

to be interpreted in a manner that would

reach an absurd result. See, Perry Vv.

Commerce Loan Co., ses Use 392, 400

(1966); Rector of Holy Trinity Church v.

United States, 143 U.S. 457, 461 (1892).

The courts are to interpret a statute in a

way that agrees .with the intent of

Congress. C.I.R. v. Engle, 464 U.S. 206

(1984). Yet the decision of the Eleventh

Circuit ends in such a result that is both

absurd and contrary to the intent of

Congress in enacting the Clean Air Act.

The Clean Air Act’~ prohibits’ the

importation into the United States, without

proper modification, of any vehicle not

manufactured in accordance with the Act.

42 U.S.C. §7422, 19 C.F.R. §12.73(f), and

40 C.F.R. §85.1508. An unmodified,

noncomplying vehicle cannot be operated

upon the highways of America. 40 C.F.R.

§85.1507. Any vehicle not in compliance

and inside the customs territory of the

United States is here illegally. In fact,

anyone who violates these laws and

regulations is liable for a civil penalty

of up to $10,000 a day. 42 U.S.C. §7524,

40 C.F.R. §1508(b).

States, not the federal government, are

responsible for the titling and

registration of motor vehicles. States

have full povers to regulate the use of the

highways and automobiles. Section

320.02(9), Florida Statutes, does not

establish or enforce any emission

Standard. All the statute does is require

the owner of a noncomplying vehicle to

submit to the Department proof of his

compliance with the Clean Air Act before

receiving his registration and, thereby,

the state-granted permission to operate his

vehicle on the public highways.

What Florida requires is a copy of the

documents issued by the United States

Environmental Protection Agency and the

United States Customs Service, documents

the owner is required by EPA to have if he

is to be in compliance with the Clean Air

Act and to have the vehicle legally in the

country.

The Petitioner Department asserts that

Congress did not intend that the states be

preempted from their traditional role of

regulating and protecting the highways of

their respective states. Rather, relying

upon this Court's holding in Hillsborough

County and Pacific Gas & Electric Co. v.

Energy Resources Commission, 461 U.S. 190,

206 (1983), the Department submits that

Congress had no intent to halt the states'

ability to keep noncomplying vehicles off

the road.

Under the "tests" of Florida Lime &

Avocado Growers and Hines v. Davidowitz,

the intent and purpose of the Clean Air Act

is enhanced, not diminished or impaired, by

Section 320.02(9). The intent of Congress

was to allow only those vehicles on the

road which met federal standards. This

protects air quality. It also protects

manufacturers whose vehicles are

manufactured in accordance with’ those

standards from state regulations and from

noncomplying competitors. Section

320.02(9) offends none of these policies.

It does not permit vehicles on the road

that would be in violation of the Clean Air

Act and it does not impose upon the

manufacturers any emission standard at

all. By requiring proof of compliance with

the EPA standards only from those vehicles

whose manufacturers did not Originally

build the car to the federal emission

Standards, Section 320.02(9) enhances the

purpose of the Act by keeping off the road

the very cars Congress wanted off the road;

it does not, under the Hines test, stand as

an obstacle to the purpose and objectives

of the Clean Air Act.

Furthermore, using the Florida Lime &

Avocado test, it is not a physical or legal

impossibility to comply with both’ the

federal and Florida laws. Since a vehicle

cannot lawfully be in the United States, or

operated on the highways, without

permission from EPA and Customs, an

importer is not harmed by having to wait

for his title and registration, the

possession of which are necessary’ to

Operate a vehicle, until the federal

requirements are first fulfilled.

The untoward result of the decision

below is that the states must title and

the United States and that cannot be

legally operated on the public highways, a

result which oniy serves to aid and abet

the violation of federal law.

Requiring proof of compliance with the

federal law is not inconsistent with the

intent of the Clean Air Act or Congress's

desire for uniform, nationwide standards,

nor will it be a burden upon the

manufacturers and importers of vehicles

building their vehicles to the federal

emission standards. Section 320.02(9) does

not impose any additional requirement on

the owner of the vehicle. The owner must

have these documents'- prior to legal

importation and operation of his vehicle.

‘a

Requiring their production at the time of

registration is no more burdensome that

requiring proof of insurance.

IItI.

RESPONDENTS LACK STANDING

TO CHALLENGE SECTION 320.02(9),

FLORIDA STATUTES

In deciding the question of

Respondents' standing to challenge Section

320.02(9), Florida Statutes (1985), the

decision below seems not to understand that

federal laws alone control the importation

of vehiclkes into the United States and it

is those laws alone that restricted the

Respondents' ‘use of their noncomplying

vehicles. The Respondents, therefore, had

no standing to challenge Section 320.02(9)

because they suffered no injury from that

law.

The keystone case on standing is Valley

Forge Christian College v. Americans United

for Separation of Church and State, 454

U.S. 464 (1982). As this Court stated in

that case, the party bringing an action

must show that:

l. The party has suffered some

actual or threatened injury as a

result of the putative illegal

conduct of the defendant;

that the injury can be traced to

the conduct of the defendant; and

that the injury is likely to be

redressed by a favorable decision.

id. # #€724 See also, Regents of the

University of California v. Bakke, 438 U.S.

265 (1978). 9/

Here, the Respondents failed to show

they have standing. There is no evidence

9/ In addition to its incorrect

conclusion that Respondents met The Valley

Forge standing’ standard, the in banc

majority erroneously relied upon Warth v.

Seldin, 422 U.S. 490 (1975), to conclude

that all the ‘allegations of the complaint

must be taken as true. However, in Warth

the issue of standing was raised in a

motion to dismiss. As noted in City of

Hartford v. Town of Glastonburg, 561 F.2d

1032 (2d Cir. 1977):

If this were an appeal from a

judgment granting the defendants'

motion to dismiss for lack of

standing, we would be required to

accept as true all of the material

allegations of the complaint.

[citing Warth] However, we are

reviewing a final judgment based

on a fully developed record, and

the issue of standing is one on

which the plaintiffs bear’ the

burden of proof....

561 F.2d at 1051. In this case, the

judgment appealed was final judgment

entered after a trial in which Respondents

had a full opportunity to establish their

Standing. Therefore, in this appeal, the

Warth reasoning does not apply.

in the record that they suffered any actual

injury attributable to Section 320.02(9),

or that striking the statute will give them

any relief. Indeed, what “injury” they

suffer results wholly from federal law.

Both the Clean Air and Safety Acts make

it illegal to import, and thus sell or use,

a vehicle not complying with the Acts. 15

U.S.C. §1397 and 19 C.F.R. §12.73(£); 42

U.S.C. §7522 and 40 C.F.R. §85.1508.20/

Since importation into the United States is

illegal until the Safety and Clean Air Acts

are complied with and approval for entry of

the vehicle is received from Customs,

Operation of an unmodified vehicle on the

10, None of these statutes or regulations

speak to limitations on the titling or

registration of motor vehicles. This has

traditionally been an area of state

control. The Acts only prevent the states

from regulating conforming vehicles until

after their initial sale.

public highways would violate these laws.

15 U.S.C. §1397; 42 U.S.C. §7522.

Even if Section 320.02(9) did not

exist, the Respondents would still not be

able, as a matter of federal law, to

legally import, offer to sell, sell their

vehicles, or operate them on the highways

of the United States. This situation

exists not just in Florida, but in the

other 49 states. Because the Respondents

are unable to evade this fact, they have

suffered no injury under the Florida law.

Without any legal injury, the

Respondents have no standing to challenge

the constitutionality of Section 320.02(9),

Florida Statutes. The Respondents had no

Standing at either the begining of their

suit or at the conciusion of the trial.

ily

ily The Petitioner Department asserted

the above argument in support of its

assertion that the Respondents had _ no

Standing in this’ case. However, the

dissenting judges of the circuit court,

while also stating that the Respondents did

not possess standing, advanced different

grounds for their lack of standing; the

case waS moot as to Mrs. Sims and FICA did

not possess representational injury or

injury in fact. See, 863 F.2d at 1463-68,

Tjoflat, J., dissenting.

IV.

THE COURT OF APPEALS WAS REQUIRED TO

EXAMINE THE SUBJECT STATUTE TO DETERMINE

IF THE INVALID PROVISIONS COULD BE SEVERED

FROM THE VALID PROVISIONS

In its in banc opinion, the Eleventh

Circuit held that Section 320.02(9),

Florida Statutes (1985), was, in its

entirety, unconstitutional even though it

expressly found that the statute was not

preempted by the Motor Vehicle Safety Act,

15 U.S.C. §1381, t seq. 662 F.20 at

1458. Therefore, the Court of Appeals

struck the entire law. 12

127 By so holding Section 320.02(9),

Florida Statutes, totally unconstitutional,

the circuit court avoided the commerce

clause question. However, Section

320.02(9) is no different than the Texas

statute in Direct Automobile Imports

Association, Inc. v. Townsley, 804 F.2d

1408 (5th Cir. 1986), that the Fifth

Circuit found was not preempted by the

Safety Act; not in violation of the

Commerce Clause; and, thus, enforceable.

It is axiomatic that a statue, state or

federal, is presumed to be valid. National

R.R. Passenger Corp. v. Atchinson, Topeka &

Santa Fe Ry. Corp., 470 U.S. 451 (1985);

Clements v. Flashing, 547 U.S. 957 (1982);

Erznoznik v. City of Jacksonville, 422 U.S.

205 (1975). Because of this presumption,

each statute must be construed to be

constitutional if at all possible. Je

DeBartolo Corp. v. Florida Gulf Coast Bldg.

and Const. Trades Council, i P

108 S.Ct. 1392, 1397 (1988); St. Martin

Evanglical Luthern Church v. South Dakota,

451 U.8. 772 (1961).

If a portion of the law is found to be

unconstitutional, the courts are under an

obligation to uphold the law by severing

the invalid portions from the valid, thus

permitting the valid part to stand.

Scheinberg v. Smith, 659 F.2d 476, 481 (5th

Cir. 1981), rehearing den'd, 667 F.2d 93

(5th Cir. 1981). To sustain the law, the

courts are to subject the terms of the law

to a narrowing construction that would

preserve the validity of the act.

Erzonznik v. City of Jacksonville, 415 U.S.

at 216. If a federal court finds that the

courts of the state could or would adopt a

construction of the statute that eliminates

the constitutional defect, then the federal

court is to defer to the state and uphold

the non-offending provision. See, Time,

Inc. v. Hill, 385 U.S. 374 (1967). 23/

The Petitioner Department submits that

the Eleventh Circuit failed to follow this

Court's and its own decisions on the

13/ Under Florida law, a court is obliged

to adopt a construction of a statute that

is constitutional. See, Vildibill v.

Johnson, 492 So.2d 1047 (Fla. 1985), answer

to certified question conformed to 802 F.2d

1347 (llth Cir. 1985); Industrial Fire &

Casulty Insurance Co. v. Kwechin, 447 So.2d

1337 (Fla. 1983).

severability of constitutional aspects of a

state statute. Moreover, the Court of

Appeals made no attempt to give the law a

narrowing construction, even after finding

the Section 320.02(9) was not preempted by

the Safety Act. This Petitioner submits

that the Circuit Court was under an

affirmative obligation to review Section

320.02(9) to see if the language requiring

evidence of proof of compliance with the

Clean Air Act from the EPA could have been

severed from the other portions of the law

and still have an independently enforceable

law. 14,

It has long been the law of this Court

that the federal courts are not to engage

in wholesale invalidation of laws. Rather,

they are to see if the repugnant provisions

14) For example, by striking the

offending language of Section 320.02(9) as

follows (using overstrikes to remove the

invalid provisions),

Before a motor vehicle which has

not been manufactured in accordance

with the federat Etean Atr Act and

the federal Motor Vehicle Safety Act

can be sold to a consumer and titled

and registered in this state, the

motor vehicle must be certified by

the United States Customs Service or

the United States Department of

Transportation and the Untted States

Bnvtronmentat Protection Ageney to be

in compliance with these standards.

the Court of Appeals could have examined

the law to determine if the remaining

provisions were fully independent of the

invalid portions thus leaving a fully

Operative law that could be enforced.

can be separated from the remaining parts.

As If part of the challenged law is

invalid, the court is to strike the

offending portions but uphold the valid

parts. Brockett v. Spokane Arcades, Inc.,

742 U.S. 491 (1985); Broadwick v. Oklahoma,

413 U.S. 601 (1973); Bank of Hamilton v.

Dudley's Lessee, 27 U.S. (Pet.) 492 (1829)

(the bad parts of a law may be disregarded

157 "Whenever an act of Congress contains

unobjectional provisions separable from

those found to be unconstitutional, it is

the duty of the court to so declare, and to

Maintain the act in so far as it is

valid." El Paso & Northeastern R. Co. v.

Gutierrez, 215 U.S. 87, 96 (1909).

giving full effect to the non-repugnant).

16, As this Court said in Brockett:

the same statute may be in part

constitutional and in part

unconstitutional, and that if the

parts are wholly independent of

each other, that which is

constitutional may stand while

that which is unconstitutional

will be rejected

Id., 472 U.S. at 502, quoting Allen v.

Lovisiana, 103 U.S. 80, 83-84 (1881). +//

This Court reached that same result in

;

487 In Florida, a court is to examine a

challenged law and, if possible, sever the

invalid portions from the remainder of the

law. Eastern Air Lines v. Department of

Revenue, 455 So.2d 317 (Fla. 1984); State -

v. Champe, 373 So.2d 874 (Fla. 1978).

ivy For examples of cases in which the

remainder of a statute was upheld while

part of the statute was declared invalid,

see, Buckley v. Valeo, 424 U.S. 1 (1976);

U.S. v. Jackson, 390 U.S. 570 (1968); and

El Paso & Northeastern R. Co. v. Gutierrez,

215 U.S. 87 (29ers.

Regan v. Time, Inc., 468 U.S. 641 (1984)

(plurality opinion). i8,

This Court has held that the

constitutional provisions of a law are

presumed to be severable if what remains

after the severence is fully operative as a

law. Alaska Airlines, Inc. v. Brock,

U.S. » 107 S.Ct. 1476, 1479-80 (1987);

I.N.S. v. Chadha, 462 U.S. 919, 934 (1983);

U.S. v. Jackson, 390 U.S. 570 (1968). This

holding arises from the basic principle of

the presumption in favor of severability,

reasoning that severence is preferable to

striking an entire act. Regan, 468 U.S. at

bead Judge Fay of the Eleventh Circuit

Court of Appeals, writing separately, in

President's Commission On Organized Crime

v. Scaduto, 763 F.2d 1191 (llth Cir 1985),

cited this Court's decision of Regan for

the general proposition of severability and

then stated "[iJf the unconstitutional

portion of a statute can be severed, the

remaining portion should be upheld". Id.,

763 F.2d at 1201.

653.

The test of severability is that

restated by the Court in Alaska Airlines.

If dropping the invalid part will leave a

fully operative law, then the invalid part

is to be discarded and the remainder of the

law can be enforced. EG54 207 -S.Cl. at

1480. Furthermore,

[ujJnless it is evident that the

Legisiature would not have enacted

those provisions which are within

its power, independently of that

which is not, the invalid part may

be dropped if what is left is

fully operative as a law.

Buckley v. Valeo, 424 U.S. 1, 108 (1968),

quoting Champlin Refining co. Vv.

Corporation Commission of Oklahoma, 286

U.S. 210, 234 (1932). 197 to not have

severability, the parts of the law,

constitutional and unconstitutional, must

be mutually dependent upon one another so

that one part will not stand without the

other. See, Carter v. Carter Coal Co., 298

U.S. 38 (1936). 29/7

197 A statute is not required to have a

severability clause in order for the court

to sever the valid from the invalid. The

absence of a severability clause does not

reaise the presumption against

severability. Alaska Airlines, Inc. v.

Brock, 107 S.Ct. at 1481. See also, Tilton

v. Richardson, 403 U.S. 672, 684 (1971)

(plurality decision).

207 Florida's holdings on the tests for

severability mirror those of this Court.

See, Eastern Air Lines v. Department of

Revenue, supra; State v. Lee, 356 So.2d

276, 283 (Fla. 1978); Cramp v. Board of

Public Instruction of .Orange County, 137

So.2d 828, 830 (Fla. 1962).

Petitioner Department asserts the

Eleventh Circuit failed to follow the clear

decisions of this Court by not~ even

attempting- to determine if the expressly

constitutional portion of Section

320.02(9), Florida Stautes, could have

stood independently and severed from the

invalid portions of that statute. If the

Court of Appeals had lined out those words

in Section 320.02(9) that were preempted by

the Clean Air Act, as was done in footnote

14 of this Petition, the court could have

tested the remaining language to determine

if a whole, rational statute remained. The

Department further asserts that had the

proper analysis had been done below, the

Circuit court would have discovered the

remaining valid portions of Section

320.02(9) would be an enforceable law as

the court had just ruled that a state was

not preempted from requiring proof of

compliance with the Safety Act.

This failure to attempt to determine if

severence was possible put the Eleventh

Circuit into direct conflict with the Fifth

Circuit Court of Appeal in Direct

Automobile Imports Association, Inc. vv.

Townsley, 804 F.2d 1408 (5th Cir. 1986).

In that case the Fifth Circuit had before

it a Texas statute nearly identical to

Section 320.02(9) (a fact never disputed by

the Respondent or the Eleventh Circuit

itself. See, 862 F.2d at 1456). After

reaching the same conclusions later reached

by the Eleventh Circuit on the merits of

the vieiantisn eaastten, the Fifth Circuit,

determined that the valid portion of the

Texas statute could stand alone. The Fifth

Circuit then lifted the district court's

injunction against the enforcement of the

Safety Act provisions of the Texas

statute.

The same result was reached in Georgia

Automobile Importers Compliance Association

v. Bowers, 639 F.Supp. 352 (N.D. Ga. 1986).

20/

207 Another result of not attempting to

determine whether the valid portions of

Section 320.02(9) could stand independent

of the invalid portions, was the Eleventh

Circuit declining to address the Commerce

Clause issue ruled upon by the district

court and the panel decision. This too put

that court in direct conflict with the

Fifth Circuit Court of Appeal in Direct

Automobile Imports Association, Inc. Vv.

Townsley, supra. After determining that

the valid portion of the Texas’ statute

could stand alone, the Fifth Circuit

examined whether the remaining provision

was in conflict with the Commerce Clause.

The court thought the Commerce Clause

argument so weak it held the issue was

without merit, 804 F.2d at 1416, permitting

enforcement of the valid provisions of the

Texas law. The same result was reached in

Georgia Automobile Importers Compliance

Association v. Bowers, 639 F.Supp. at 362-

63.

CONCLUSION

The Petitioners submit that summary

disposition of this case on the Eleventh

Amendment would be appropriate, in which

case the Court should grant certiorari and

reverse the judgment below. In the

alternative, the Court should grant

certiorari and permit full briefing of the

issues.

Dated: May , 1989.

Respectfully submitted

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

ERIC J. TAYLOR

Assistant Attorney General

Counsel of Record

STATE OF FLORIDA

OFFICE OF THE ATTORNEY GENERAL

The Capitol

Tallahassee, Florida 32399-1050

(904) 487-2142

Counsel for Petitioners

‘enter

APPENDIX

INDEX

Page

APPENDIX A: Opinion of The Court

To Be Reviewed

Sims v. State of Florida, AS

Department of Highway Safety

And Motor Vehicles,

862 F.2d 1449

(lith Cir. i969)

APPENDIX B: Other Opinions Of

The Court

is Sims v. State of Florida, A105

Department of Highway

Safety and Motor Vehicles,

832 F.2d 1588

(lith Cir. 1987)

vacated, 840 F.2d 778

(llth Cir. 1988)

2. Sims v. State of Florida, A215

Department of Highway

Safety and Motor Vehicles,

840 F.2d 778 (llth Cir. 1988)

(granting rehearing in banc)

- Al -

APPENDIX C: Judgment To Be

Reviewed

Issued as Mandate: A217

Judgment on Rehearing

and Suggestion for

Rehearing In Banc

March 13, 1989

APPENDIX D: Other Appended

Materials

Sims v. State of Florida, A219

Department of Highway

Safety and Motor Vehicles,

United States District Court

Northern District of Florida

December 30, 1985

Sims v. State of Florida, A240

Department of Highway Safety

and Motor Vehicles,

Appellant's Petition for

Rehearing in banc.

January 27, 1989

Sims v. State of Florida, A259

Department of Highway

Safety and Motor Vehicles,

Order of March 2, 1989

denying Appellant's Petition

for Rehearing in banc.

APPENDIX E: Constitutional Provisions,

Statutes and Regulations

| Constitutional Provisions

a. Supremacy Clause A261

os -mrticie III A261

c. Due Process Clause A262

d. Eleventh Amendment A263

2. Applicable Statutory

Provisions

a. Section 320.02(9), A264

Florida Statutes (1985)

b. Clean Air Act,

oe 42 0.8.C. §7522 A265

il. 42 U.S.C. §7524 A268

fii. 42 0.S.C. §7543 A269

c. Motor Vehicle Safety Act

ca eemews $1397 A270

a% Applicable Regulations

a. 7 ae C.FR. $12.73 A271

oe, £0 C.P.R. §85.1504 A282

- - A3 -

Cc. 40 C.F.R. §85.1507 A286

d. 40 C.F.R. §85.1508 A287

e. 19 C.F.R. §12.80 A289

- A4 -

APPENDIX A

UNITED STATES COURT OF APPEALS,

FLEVENTH CIRCUIT

No. 86-3055

MYRA HOLLADAY SIMS and FLORIDA

IMPORT AND COMPLIANCE ASSOCIATION,

Plaintiffs/Cross-Appellees,

vs.

STATE OF FLORIDA, DEPARTMENT OF

HIGHWAY SAFETY AND MOTOR VEHICLES,

Defendant/Cross-Appellant.

{January 11, 1989]

Appeal from the United States District

Court for the Northern District of Florida

Before Roney, Chief Judge,

TJOFLAT, HILL, FAY, VANCE,

, DRAVITCH, JOHNSON, HATCHETT,

ANDERSON, EDMONDSON and COX,

Circuit Judges.

HATCHETT, Circuit Judge:

We took this case in banc to determine

whether Florida Statute 320.02(9) violates

the Supremacy Clause and the Commerce

- AS -

Clause of the United States Constitution.

Finding the statute unconstitutional, we

affirm in part and reverse in part.2

FACTS

On April 30, 1985, Myra Holladay Sims

imported from Europe an automobile

popularly known as a “gray market"

automobile. 2 Gray market automobiles are

imported automobiles which do not comply

with United States emissions and safety

standards. The Florida Import and

Compliance Association (FICA) is a trade

association whose members directly

participate in importing and altering gray

1 By our rules, we vacated the panel

Opinion, 832 F.2d 1558, at 840 F.2d 778

(llth Cir.1988).

2 Sims purchased the used 1976 Mercedes

Benz 450 SEL from Ulrich Kieserwalter of

Bonn, West Germany.

- A6 -

market automobiles.

Two federal statutes govern the

importation of foreign manufactured

automobiles into the United States. The

Clean Air Act (42 U.S.C. § 7522), and the

Bececy Act (15 U.S.C... § 1397), bar the

importation of motor vehicles which do not

comply with the applicable federal

emissions and safety standards.

Specifically, the Clean Air Act prohibits

the sale, or the offering for

sale, or the introduction, or

Gelivery for introduction, into

commerce, or (in the case of any

person, except as provided by

regulation of the Administrator),

the importation into the United

States, of any new motor vehicle

Or new motor vehicle’ engine,

manufactured after the effective

date of regulations ‘under this

part which are applicable to such

vehicle or engine unless” such

vehicle or engine is covered by a

certificate of conformity issued

(and in effect) under regulations

- AJ -

prescribed [by this statute]?

42 U.S.C § 7522(a)(1). Also, section

3° The Clean Air Act does not de‘ine "new

car" as it relates to gray market

automobiles by considering whether the

automobile has previously been sold prior

to its importation into the United States:

(3) Except with respect to vehicles

Or engines imported or offered for

importation, the term 'new motor

vehicle' means a motor vehicle the

equitable or legal title to which has

never been transferred to an ultimate

purchaser; and the term ‘new motor

vehicle engine' means an engine in a

new motor vehicle or a motor vehicle

engine the equitable or legal title

to which has never been transferred

to the ultimate purchaser, and with

respect to imported vehicles or

engines, such terms mean a motor

vehicle and engine, respectively,

manufactured after the effective date

of a regulation issued under section

7521 of this title which is

applicable to such vehicle or engine

(Or which would be applicable to such

vehicle or engine) had it been

manufactured for importation into the

United States).

42 U.S.C. § 7550(3) (emphasis added).

- A8 -

7522(b)(2) provides:

[t]he Secretary of the Treasurey

and the Administrator [of the

Environmental Protection Agency

(EPA) may, by joint regulation

provide for deferring final

determination as to admission and

authorizing the delivery of such a

motor vehicle or engine offered

for import to the owner or

consignee thereof upon such terms

and conditions (including the

furnishing of a bond) as may

appear to them appropriate to

ensure that any such motor vehicle

Or engine will be brought into

conformity with the standards,

requirements, and limitations

applicable to it under this

part. The Secretary of the

Treasury shall, if a motor vehicle

Or engine is’7~ finally refused

admission under this’ paragraph,

cause disposition thereof in

accordance with the customs laws

unless it is exported, under

regulations prescribed by such

Secretary, within ninety days of

the date of notice of such refusal

Or such additional time as may be

permitted pursuant to such

regulations, except that

disposition in accordance with the

customs laws may not be made in

such manner as may result,

directly or indirectly, in the

sale, to the ultimate customer, of

a new motor vehicle or new motor

vehicle engine that fails to

comply with applicable standards

- AQ -

of the Administrator under this

part.

Similarly, the Safety Act provides that

"{[n]o person shall manufacture for sale,

sell, offer for sale, or introduce or

deliver for introduction in interstate

commerce, Or import into the United States,

any motor vehcile [unless it is in

conformity with applicable federal motor

vehicle safety standards]." iS G.8.C. §

1397(a)(1)(A). In addition, that statute

provides:

[T]he Secretary of the Treasury

and the Secretary [of the National

Highway Safety Administration,

Department of Transportation

(DOT)] may, by . . . regulations,

provide for authorizing the

importation of such motor vehicle

- Or item of motor vehicle equipment

into the United States upon such

terms and conditions (including

the furnishing of a bond) as may

appear to them appropriate to

ensure that any such motor vehicle

Or item of motor vehicle equipment

Will be brought into conformity

with any applicable federal motor

vehicle safety standard prescribed

under this subchapter, or will be

“ S240 =

}

exported Or abandoned to- the

United States.

15 U.8.C. § 1397(b)(3).

Despite general prohibitions against

importing nonconfroming motor vehicles into

the United States, Congress, under the

above provisions, authorized the

importation of gray market vehicles upon

the furnishing of a bond or other means of

assuring that the importers and their

customers do not circumvent the federal

environmental safety laws. The EPA, the

DOT, and the Treasurey Department

promulgated regulations governing such

importation. See generally 19 C.F.R. §§

12.73, 12.80; 40 C.F.R. Part 85S, Sudpart P

and 49 C.F.R. Part S71. Under these

regulations, the authorities conditionally

admit gray market™vehicles into the United

States for the limited purpose of enabling

the importer to comply with federal

~ @4i°>

emissions and safety laws. The importer

must post an entry bond with the United

States Customs Service (Customs) for an

amount equal to the value of the vehicle

plus the customs duty. See Automobile

Importers Compliance Association, Handbook

of Vehicle Importation, 21 (1984). In

addition, the importer must Sign a

statement indicating that the motor vehicle

"is mot covered by a_ certificate of

conformity with federal motor’ vehicle

emission standards but will be brought into

conformity with such standards." 19 C.F.R.

§ 12.73(b)(5)(x) (1986). Finally, the

importer must declare that the vehicle "was

not manufactured in conformity [with] all

applicable safety standards, but it has

been or will be brought into conformity."

- #12 =

19 C.F.R. § 12.80(b)(1)(iii).4 The entry

4 Title 19 C.F.R. § 12.80(b)(1)(iii)

reads:

(b) Requirements for entry and

release.

(1) (EJlach vehicle .. . offered

for introduction into the customs

territory of the United States shall

be denied entry unless the importer

Or consignee files with the entry a

declaration, in duplicate, which

declares or affirms one of the

following:

(iii) The vehicle or equipment

item was not manufactured in

conformity [with] all applicable

safety standards, but it has been or

will be brought into conformity.

Within 120 days after entry, or

within a period not to exceed 180

days after entry, if additional time

is granted by the Administration,

National Yighway Traffic Safety

Administration ("Administrator,

NHTSA"), the importer or consignee

will submit a true and complete

statement to the Administrator, |

NHTSA, identifying the manufacturer,

contractor, or other person who has

brought the vehicle or equipment item

into conformity, describing the exact

nature and extent of the work

performed, and certifying that the

vehicle or equipment item has been

oe 2 le

receives assurance from the EPA a

that the importer has complied wit

standards. See 19 C.F.R s§ 2

12.80e.

When Sims's automobil arrive

Jacksonville, Florida, she complied

the applicable federal regul

governing the importation of gray

brought into conformity, and that

(footnote con't)

the vehicle or equipment item wil

not be sold or offered for

the Administrator, NHTSA,

approval letter to the dist

director stating that the

equipment item described

declaration has been brou

conformity with all applica

safety standards.

2 The importer of a vehicle, more than

five years old and imported for personal

use and not for resale, is entitled to

once-in-a-lifetime exemption from the Clean

Air Act's emission standards. The EPA

automatically grants the exemption but the

importer is still required to comply with

the requirements of the Safety Act and the

DOT. In addition, the laws prohibit the

importer from selling the vehicle for two

years after importation. See generally

United States EPA, Automotive Imports-Fact

Sheet 76 (1983).

In 1984, the Florida legislature passed

the following statute concerning motor

vehicle titling and registration:

Before a motor vehicle which has

not been manufactured in

accordance with the federal Clean

Air Act and the federal Motor

Vehicle Safety Act can be sold to

a consumer and titled and

registered in this state, the

motor vehicle must be certified by

the United States Customs Service

or the United States Department of

Transportation and the United

States Environmental Protection

Agency to be in compliance with

these federal standards. A

vehicle which is registered

pursuant to this subsection shall

not be titled as a new motor

vehicle.

Act approved June 11, 1984, ch. 84-155, §

3, 1984 Fla. Laws 457, 458 (codified as

amended at Fla.Stat. § 320.02(9) (1985)).

This provision prevents a gray market

vehicle owner from acquiring title and

vehicle registration in Florida until the

owner has obtained the required

documentation from the federal government.

- ALS ~

Subsequent to the passage of Fla.Stat.

§ 320.02(9), Sims unsuccessfully sought to

title and register her automobile at the

Florida Department of Highway Safety and

Motor Vehicles (DMV). The DMV refused to

title and register Sims's vehicle because

she did not produce release letters from

the DOT and Customs certifying compliance

with federal standards. Sims had _ not

received a bond release letter from the DOT

because the DOT had an excessive number of

forms for review. ©

PROCEDURAL HISTORY

Following refusal to title and register

the vehicle, Sims and the FICA filed suit

in United States District Court for the

Northern District of Florida alleging that

6 In July, 1985, the DOT had 14,000

compliance forms for review.

- Al7 -

the state's enforcement of section

320.02(9) violated the Supremacy and

Commerce clauses of the United States

Constitution: (1) the Clean Air Act and

Safety Act preempt the state's authority to

require compliance with federal emission

and safety standards, and (2) enforcement

of section 320.02(9) impermissibly burdens

foreign and interstate commerce. The

district court concluded that the Clean Air

Act and Safety Act preempt the _ state's

authority to enforce section 320.02(9) and

that enforcement of the statute would

violate the commerce clause. The district

court declared section 320.02(9)

unconstitutional and enjoined its

enforcement. The state brings this appeal

from the district court's ruling.

-~ hee

DISCUSSION

We first discuss those issues’ the

parties presented to the district court,

upon which the district court ruled, and

the State of Florida initially appealed:

the constitutionality of Florida Statute

320.02(9) under the Supremacy and Commerce

clauses of the United States Constitution.’

1. Supremacy Clause

Sims and FICA successfully challenged

the constitutionality of Fla.Stat. §

320.02(9) in the district court. The

district court held that the Clean Air Act

and the Safety Act preempt the state's

7 The parties did not present the

jurisdictional issues which we later

address to the district court, but the

panel (Judges Tjoflat, Hatchett, and Eaton)

raised them at oral argument. The parties

briefed and argued these jurisdictional

issues before the in banc court.

~ &29 =

authority to require compliance with

federal emission and safety standards.

Federal preemption of state law is derived

from the Supremacy clause of article VI,

clause 2, of the United States

Constitution, which reads:

This Constitution, and the laws of

the United States which shall be

made in pursuance thereof; and all

treaties made, or which shall be

made, under the authority of the

United States, shall be the

Supreme law of the land; and the

judges in every state shall be

bound thereby, anything in the

Constitution or laws of any state

to the contrary notwithstanding.

The Supreme Court stated the three ways

in which federal law may preempt state law:

Federal law may preempt state law

in any of three ways. First, in

enacting the federal law, Congress

may explicitly define the extent

to which it intends to preempt

State law. [Citation omitted. ]

Second, even in the absence of

express preemptive language,

Congress may indicate an intent to

occupy an entire field of

regulation, in which case _ the

states must leave all regulatory

activity in that area to the

- AiG =

federal government. {Citations

omitted. ] Finally, if Congress

has not displaced state regulation

entirely, it may nonetheless

preempt state law to the extent

that the State law actually

conflicts with federal law.

Michigan Canners and Freezers Association,

Inc. Vv. Agricultural Marketing and

Bargaining Board, 467 U.S. 461, 469, 104

S.Ct. 2518, 2523, 81 L.Ed.2d 399 (1984).

We acknowledge[d] the well established

principle that the touchstone of preemption

analysis is congressional intent ... ."

Howard v. Uniroyal, Inc. 719 F.2d 1552,

1555 (llth Cir.1983) Additionally, we have

noted that "[tjhe intent of Congress to

preempt a state law may be either express

Or implied, and "is compelled whether

Congress' command is explicitly stated in

the Statute's language or implicitly

contained in it structure and purpose.'"

Howard, 719 F.2d at 1556 (citing Jones v.

oon wecmana CO., 430 U.S. 519, 525, 97

= Aa, -

S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977)).

A. The Clean Air Act

The Clean Air Act contains the

following preemptive provision regarding

state enforcement of federal emission

standards:

No state or any political

subdivision thereof shall adopt of

attempt to enforce any standard

relating to the control of

emissions from new motor vehicles

Or new motor vehicle - engines

subject to [the vehicle emission

standards of the Clear Air Act].

No state shall require

certification, inspection, or any

other approval relating to the

control of emissions from any new

motor vehicle or motor vehicle

engine as condition precedent to

the initial retail sale, titling

(if any), or registration of such

motor vehicle, motor vehicle

engine, or equipment.

42 U.S.C. § 7543(a). The express language

in section 7543(a) indicates Congress's

intent to exclusively regulate the control

of new motor vehicle emissions prior to

~ Age =

their initial sale. See Michigan Canners,

467 U.S. 461, 1094 S.Ct. 2518, 81 L.Ed.2a

399.

The state contends that Fla.Stat. §

320.02(9) simply ensures that new motor

vehicles coming onto Florida's’ highways

comply with the Clean Air Act; it does not

establish new or conflicting emission

Standards. Although the state may base its

contention on proper and wholesome

intentions, nevertheless, Congress

specifically stated that "({nJlo state .. .

shall adopt or attempt to enforce any

[federal or state] standard relating to the

control of emissions from new motor

vehicles" prior to the initial sale. 42

U.S.C. § 7543(a) (emphasis added). Thus,

we agree with the district court's ruling

and hold that "({e]nforcement of the Clean

Air Act before [the] first sale [of new

motor vehicles} is the sole and exclusive

- Ags =

perogative of the federal government."8

preemptive provision which reads in part:

The Safety Act

Safety Act likewise contains

Whenever a federal motor vehicle

safety standard established under

this subchapter is in effect, no

state or political subdivision of

a state shall have any authority

either to establish, or to

continue in effect, with respect

to any motor vehicle or item of

motor vehicle equipment any safety

Standard applicable to the same

aspect of performance of such

vehicle or item of equipment which

is not identical to the federal

The district court additionally noted

that section 7543(d) of the Clean Air Act

further indicates Congress's intent to

exclusively enforce federal emission

standards relating to new automobiles

before their initial sale because the

Statute specifically allows the state to

regulate automobile use and operation

Subsequent to the initial sale.

U.S.C.

Title 42

§ 7543(d) reads: "Nothing in this

part shall preclude or deny to any state or

political subdivision thereof the right

otherwise to control, regulate, or restrict

the use, operation, or movement of

registered or licensed motor vehicles."

[Emphasis added. ]

a a %y ”) ~ }

L> Ueoe\ S L3I¥9Z(ad). URLIKS

rat 4 An Nr + +r x +r eh

DrovVvi1l AWil wwii ainea Rid ne

thie ~ $a nn nt a snlisnoc

LtllsS Section preciudces

enforcement orf safety stan

such standards differ

standards.

The district court held

motor vehicle's first sale,

are absolutely barred fron

manner whatsoever in"

safety standards and that

states in enforcing the federal

regulations is con

period after the first

automobi We disagree

preclude states from requirl

compliance with federal

before obtaining title and

QGray market automobiles. The United States

Supreme Court stated that "[{t]he question

whether the regulation of an entire field

has been reserved by the federal government

is, essentially, a question of ascertaining

the intent underlying the federal

scheme." Hillsborough County, Florida v.

Automated Medical Laboratories, Inc., 471

U.S. #07, 714, 105 §.Ct. 2371, 2375, 85

L.Ed.2d 714, 722 (1985). Congress enacted

the Motor Vehicle Safety Act to establish

uniform federal safety standards. See H.R.

1776, 89th Cong., 2d Sess. 17 (1966). The

Safety Act as orginally enacted, restricted

federal enforcement of safety standards to

the initial sale of new vehicles and

permitted state enforcement of safety

Standards identical to corresponding

federal standards after the first sale of

new vehicles. S.Rep. No. 1301, 89th Cong.,

2d Sess., reprinted in 1966 U.S.Code Cong.

- Ag6 =~

& Admin.News 2709, 2720.

Also, the District Court for the Middle

federal laws preempted state safety

Standards identical to federal standards

because congress intended to preclude

States from presale enforcement offederal

safety standards. Truck Safety Equipment

Institute V. Kane, 466 F.Supp. 1242

(M.D.Pa.1979). The court in Kane, however,

noted that the standards derived under the

Pennsylvania system required independent

testing and the payment of fees to cover

the cost of such testing. Kane, 455

F.Supp. at 1245-46. Unlike the

or no Te, > rc +, 1 - 4 vamiIN , } Y

Pennsylvania regulations examined in Kane,

section 320.02(9) does not ~ impose

requirements on a gray market vehicle

importer beyond those imposed by the

5 si 7] ~

applicable federal standards.

In 1982, the National Highway Traffic

EE RR

opinion interpreting the extent to which

the Safety Act preempted state enforcement

of federal safety standards. Federal Motor

Vehicle Safety Standards: Interpretation

Regarding Preemption and Presale State

Enforcement of Safety Standards, 47

Fed.Reg. 884 (Advisory Letter) (1982). In

its interpretation, the NHTSA stated:

[I]t is the position of the NHTSA

that any state requirement which

necessitates that manufacturers

pay fees in order to obtain

approval under a state standard

identical to an FMVSS [Federal

Motor Vehicle Safety Standard],

and any imposition of requirements

for approval which has the effect

of prescribing the sale of

equipment certified under the Act

to a standard such as FMVSS 218

would be preeempted by operation

of the Act and of the agency's

action in adopting the federal

Standard in question.

47 Fed. Reg. at 885.

Recently, the Fifth Circuit examined a

Texas statute similar in language to

- £45 =

Fla.Stat. § 320.02(9) and stated:?

Texas statute, H.B. 1805 provides:

Before a motor vehicle not

manufactured for sale or

distribution in the United States

may be registered and titled in

Texas, the applicant shall furnish

to the designated agent: (1) a

bond release letter, with all

attachments, issued by the United

States Department of

Transportation acknowledging

receipt of a statement of

compliance submitted by the

importer of the vehicle and that

the statement meets the safety

requiremtns of 19 C.F.R. 12.80(e);

and (2) a bond release letter,

with all attachments, issued by

the United States Environmental

Protection Agency stating that the

vehicle has been tested and shown

to be in conformity with federal

emission requirements; and (3) a

receipt of certificate issued by

the United States Department of

Treasury showing that any and all

gas guzzler taxes due on the

vehicle under the provisions of

Pub.L. No. 95-618, Title II,

Section 20l(a) (lo U.S.C.A. 4064)

have been fully paid; or (4) proof

Satisfactory to the agent that the

vehicle was not brought into the

United States from outside the

country. [Emphasis added. }

- fas ~

H.B. 1805 places no burden on the

manufacturer, which was clearly

the concern behind the

interpretation. H.B. 1805 does

not involve the payment of any

fees, nor does it have the effect

of prescribing the sale of

federally certified equipment.

Indeed, H.B. 1805 does not require

any certification except federal

certification by — federal

authorities. As best we can tell,

the original pre-1982 amendment

provision was enacted to assure

uniformity of Standards for

manufacturers SO vehicles~ and

equipment meeting the federal

Standards could be sold freely in

any state. See remarks of Senator

Magnuson (one of the NHTSA's

Sponsors), 112 Cong.Rec. S14230

(daily ed. June 14, 1966) (remarks

of Senator Magnuson). The Texas

statute. H.B. 1805, does not

impair this ecbjective since it

creates no independent state

Standard or certification of the

automobiles.

Direct Automobile Imports Association, Inc.

v. Townsley, 804 F.2d 1408, 1414 (5th

Cir.1986). The same rationale appiies to

Pla. Stat. § 320.02(9)}. Section 320.02(9)

does not impose additional requirements or

- ASU =

burdens on the manufacturer or importer,

nor does it require the payment of

additional fees. Further, section

320.02(9) does not prescribe the sale of

federally certified equipment or impair

Congress's objective of establishing

uniform federal safety standards to permit

the free marketability of vehicles in all

states.

In 1982, Congress added the following

sentence to section 1392(d): "Nothing in

this section shall be construed = as

preventing any state from enforcing any

safety standard which is identical to a

federal safety standard." 15 0.8.0... -§

1392(d) (1982). The Senate issued a report

on the amendment which reads in part:

States are not preempted from

enforcing safety standards

identical to federal standards

which they have adopted. States

may not require [state]

certification or approval of motor

- 34>

vehicles Or motor vehicle

equipment. However, state

enforcement may be carried out

according to applicable state

laws. States may undertake

independent testing, and also may

require manufacturers to submit

adequate test data concurrent with

the riret sale or thereafter.

(Emphasis added. ]

‘8. Rep. No. 505, 97th Cong., 2d Sess.

reprinted in 1982 U.S. Code Cong.

Admin.

News 3169, 3174.

“ 824. *

The District Court for the Northern

District of Georgia addressed the

constitutionality of Georgia statutes

O.C.G.A. §§ 40-2-25.129,

10 Section 40-2-25.1 provides that:

(a) No application shall be

accepted and no certificate of

registration shall be issued to any

motor vehicle which was not

manufactured to comply with federal

emission and safety standards

applicable to new motor vehicles as

required by

- - - the ‘Clean Air Act,'

and as required by... the

‘National Traffic and Motor Safety

Act,' . . . unless and until the

United States Customs Service or the

United States Department of

Transportation and the United States

Environmental Protection Agency have

certified that the motor vehicle

complies with such applicable federal

standards and unless all documents

required by the Department of Revenue

for processing an application for a

certificate of registration or title

are printed and filled out in the

English language or are accompanied

by an English translation.

O.C.G.A. § 40-2-25.1(a) (1985).

* Ree *

40-3-29.111, ana

11 Section 40-3-29.1 states that:

{[N]o application shall be accepted

and no certificate of title shall

be issued to any motor vehicle

which was not manufactured to

comply with federal emission and

safety standards applicable to new

motor vehicles as required by

. the ‘Clean Air Act' .. . and as

required by the 'National Traffic

and Motor Safety Act,' .. . and

as required by the ‘National

Traffic and Motor Safety Act,' .

unless and until the United

States customs Service or the

United States Department of

Transportation and the United

States Environmental Protection

Agency have certified that the

motor vehicle complies with such

applicable federal standards and

unless all documents required by

the Department of Revenue for

processing an application for a

certificate of registration or

title are printed and filled out

in the English Language or are

accompanied by an English

translation.

O.C.G.A. § 40-3-29.1 (1985).

* Age >

16-9-11012 (1985) in light of 15 U.S.C. §

1392(d) (1982). Georgia Automobile

Importers Compliance Association, Inc. v.

Bowers, 639 F.Supp. 352 (N.D.Ga.1986). In

reviewing the legislative history of

section 1392(d), the district court noted

several statements made on the floor of the

House of Representatives on the bill's

12 Section 16-9-110 provides that:

(a) It shall be unlawful for any

person, firm, or corporation

knowingly to sell, transfer, or

otherwise convey any motor vehicle

which was not manufactured to comply

with federal emission and safety

standards applicable to new motor

vehicles as required by... the

"Clean Air Act,' .. . and the

‘National Traffic and Motor Safety

Act,' . . . unless and until the

United States Customs Service of the

United States Department of

Transportation and the United States

Environmental Protection Agency have

certified that the motor vehicle

complies with such applicable federal

standards.

O.C.G.A. § 16-9-110(a) (Supp.1985).

-—ae2 -

passage which indicated congressional

intent. Representative Wirth stated that

"{a] recent court case and NHTSA opinion

have changed the scope of traditional state

enforcement." 128 Cong. Rec. H3438 (daily

ed. June 14, 1982) (remarks of Rep.

Wirth). Representative Moorhead considered

the amendment to affirmatively declare

states as having a role in enforcing

federal safety standards. See 128 Cong.

Rec. H3439 (daily ed. June 14, 1982)

(remarks of Rep. Moorhead). In addition,

Representative Dingell stated that under

the amended section 1392(d) "states may

undertake independent testing of vehicles

Or equipment and may require manufacturers

to submit adequate data concurrently with

the riceat sale within a state, or

thereafter." 128 Cong. Rec. H3440 (daily

ed. June 14, 1982) (remarks of Rep.

Dingell).

- ASG

We agree with the Fifth Circuit's

conclusion in Townsley that the "the

legislative history shows an intent to

preempt state presale enforcement of

federal Standards where the sale of

federally certified equipment is impaired

by an independent state compliance

system." Townsley, 804 F.2d at 1415.

Fla.Stat. § 320.02(9) does not impair the

enforcement of federal safety standards or

frustrate Congress's intent of establishing

uniform standards for vehicle

manufacturers; consequently, we hold that

the Safety Act, as amended, does not

preempt Fla.Stat. § 320.02(9) (1985).

II. Commerce Clause

Although we hold that the Safety Act

does not preempt the Florida Statute, we

earlier held that the federal government

solely and exclusively may enforce the

- A37 -

Clean Air Act before a vehicle's first

sale. Consequently, the Clean Air Act

preempts Florida Statute 320.02(9),

rendering this Florida statute

unconstitutional. In light of this holding

on the preemption issue, we need not decide

the statute's consitutionality under the

Commerce Clause.13

13° the commerce clause of the United

States Constitution reads in part as

follows: "The Congress shall have the

power to regulate commerce with foregin

nations, and among the several states .

-" U.§.Const. art. I, § 8; €1. 3. Te

determine whether Fla.Stat. § 320.02(9) is

vilative of the commerce clause, we would

be called upon to (1) determine exactly

what interest the Florida statute purports

to protect, (2) determine whether the

Statute burdens commerce, and if so, to

what extent, and (3) balance the weight and

nature of the interests protected by the

Statute against the extent to which it

imposes a burden on commerce. See

generally Kassel v. Consolidated

Freightways Corp., 450 U.S. 662, 101 S.Ct.

1309, 67 L.Ed.2d 580 (1981). Nothing would

be gained by applying the balancing tests

required for commerce clause review on an

unconstitutional statute.

- A338 -

III. Jurisdictional Issues

We now turn to the jurisdictional

issues of standing, mootness, and soverign

immunity.+4

A. Standing

The state of Florida contends that

Sims and the FICA lack’ standing to

challenge the constitutionality of

Fla.Stat. § 320.02(9) because they failed

to show (1) a judicially cognizable injury

traceable to the statute's enforcement, and

(2) a likelihood of redress if we declare

the statute unconstitutional. "(T]he

question of standing is whether the

14 The parties did not present these

issues to the district court. The panel

could have immediately remanded the case to

the district court directing it to consider

these issues after presentations by the

parties. The panel required supplemental

briefs and ruled on the issues without

remand.

- AS? =>

. 15 = 1+ Yr or } y _—. ; ‘ ’ .

standing requirement, a PLaLACic¢Ci nust

f =) y >Y y ] (ry yr * , 7 ‘ + ) Oa? é

a 4 i 2 € i ) ) ad oe | A y i y a CA b

t tne cnalilengea cona t 1 a } }

tcCnat ctrne requested Le et reares

in ry f ] vy f , "rH 7 t ) )

ae | Uk Y « Vail € ‘4 r ¢ rQe i A h A | L ¢ ]¢ .

4 -s > »

le -4 . TT + ] alle" + f } ’ }

Americans pep Ra ie LOL SEC Darla )T CNul

—_ - -

} - nm

tne COmpialnt, anc e ° . CONSTrue tne

} : + ¢ } . ~

ty 9 mpblalnt Lil LTaVoOlr st ne ie np a 1Q

+ " 7 » eo | r “ 4) f . (74

party. Warth, 422 U.S. at 401, 95 S.Ct.

L.Ed.2d 66 (1979). In satisfying the

initial article III standing requirement--

an allegation of "a distinct and palpable

injury. Sims and the FICA allege that the

State's enforcement of section 320.02(9)

unlawfully prevents titling and registering

gray market vehicles in Florida. See

Warth, 422 U.S. at 501, 95 S.Ct. at 2206.

Assuming, as we must, the truth of these

allegations, the state's unlawful refusal

to issue titles and registrations to owners

of gray market vehicles constitutes a

distinct and palpable personal injury to

Sims and the FICA.

Sims and the FICA make additional

assertions sufficient to establish the

second standing requirement--the requested

relief's likelihood of redress. Absent

section 320.02/9), Florida would title and

The state's standing contention has no

merit. We must determine standing at the

time a plaintiff files suit. Deposit

Guaranty National Bank v. Roper, 445 U.S.

326, 332, 100 S.Ct. 1166, 1170, 63 L.Ed.2d

427, 435 (1980). At the time Sims filed

this lawsuit, Sims owned the vehicle that

Florida refused to title. The state relied

on the statute for its’ refusal. Who

suffers a greater injury than the owner to

whom the state denies title and

registration? Likewise, Sims prayed that

the district court declare the statute

unconstitutional and enjoin its’ future

enforcement. The district court provided

this relief.

As to the FICA's’ standing, we must

determine its members's' involvement in

importing and marketing gray makret

automobiles. According to the complaint,

- £ae =

FICA members include

persons and Florida business

entities who support improving

opportunities for commerce with

foreign nations in the

importation, use and sale in the

United States of foreign-

manufactured automobiles that are

converted in his country to comply

with emission and safety standards

of the clean Air Act and Vehicle

Safety act. Plaintiff FICA's

members include importers of

automobiles for their personal use

as well as importers for sale, or

dealers; brokers of import

transactions; owners and operators

of automotive conversion and

compliance facilities, equipped to

comply with safety standards

established pursuant to the

Vehicle Safety Act; and owners and

operators of specialized

automotive testing laboratories,

equipped to comply or verify

compliance with emission standards

established pursuant to the Clean

Air Act.

If owners, importers for personal use,

importers for_ sale, dealers, brokers,

automotive conversion mechanics, and

compliance testing laboratories involved in

the gray market vehicle business do not

~ aos: >

have standing to challenge the statute,

then no individual or entity would have the

requisite standing.

B. Mootness

The mootness issue need not cause

delay.+° We have ruled that Sims and the

FICA have standing to bring this suit.

Mootness and standing are related

doctrines. Where a party challenges

standing, the court inquires whether the

plaintiff is entitled to relief. Where

mootness is at issue, the court determines

whether judicial activity remains

necessary. Warth v. Seldin, 422 U.S. 490,

499. a. 10, 95 8:.Ct. 2197, 2205 a. 10, 45

L.Ed.2d 343 (1975). Mootness demands that

the plaintiff's personal interest in the

15 Before the panel and this in banc court,

the parties agreed that the case is not

moot. Because the panel raised the issue,

we discuss it.

- A44 -

lawsuit (standing) continue to the

lawsuit's end.

This case undoubtedly is not moct as to

the FICA. The FICA presently has the same

personal interest and stake in the lawsuit

as it did on the date of filing. The

FICA's members continue importing,

converting, testing, and selling’ gray

market vehicles. The Florida statute still

delays the effective conduct of FICA

members's businesses.

The state failed to make the only

possible mootness argument regarding Sims.

Sims received the bond release letter on

September 18, 1985, after the district

court trial which held the statute

unconstitutional. One could argue that

Sims's case became moot when she received

the documents prior to the State's

appeal. Because we decide the statute's

constitutionality in this opinion, this

- A45 -

argument simply asserts that a gray market

vehicle owner could never attack the

Florida statute; the state could deliver

the documents at any time, even after

trial, resulting in the lawsuit's

dismissal. The court would never determine

the statute's constitutionality in a gray

market vehicle owner's lawsuit because of

litigation's inherent length and delays.

Although such an argument is legally and

logically specious, we need not rely on its

specious nature. The Supreme Court

established the doctrine of "capable of

repetition yet evading review" for

application to mootness issues. Los Angles

v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75

L.Ed.2d 675 (1983); DeFunis v. Odegaard,

416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164

(1974). This doctrine allows federal

jurisdiction to continue where seemingly no

continuing controversy exists. The Supreme

~ £46 =

Court held that mootness does not apply in

these “exceptional circumstances" if a

plaintiff can demostrate that the alleged

injury is capable of repetition, but time

constraints or other circumstances preclude

the court's review. DeFunis 416 U.S. at

318-19, 94 S.ct. at 1706-07. Sim's injury

is capable of repetition. The record shows

that individuals import thousands of gray

market vehicles into the United States each

year. All of these vehicle owners who seek

title and registration in Florida will

suffer the same injuries as Sims, and

Similarly find themselves unable to attack

the statute because the state ultimately,

even after trial, delivers the documents.

Consequently, effective reveiw of an

owner's claim would never occur if we hold

that delivery of the documents at any time,

even after trial renders the owner's claim

moot. This action is not moot.

“Qa =

C. Immunity

Sims and the FICA filed suit in the

district court naming as defendants the

State of Florida, the Department of Highway

Safety and Motor Vehicles, and the Attorney

General. Sims and the FICA then filed an

uncontested motion to dismiss the Attorney

General as defendant. The parties never

named as defendant the Director of the

Division of Motor Vehicles, Florida

Department of Highway Safety and Motor

Vehicles. Thus, the State of Florida and

one of its agencies--the Department of

Highway Safety and Motor Vehicles remain

the only defendants in this action. "It is

clear .. . that in the absence of consent

a suit in which the state or one of its

agencies or departments is named as the

defendant is prescribed by the eleventh

amendment." Pennhurst State School and

Hospital v. Halderman, 465 U.S. 89, 100,

- A48 -

104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984).

The state of Florida failed to plead

sovereign immunity under the~- eleventh

amendment as a defense to this

constitutional challenge. The state never

mentioned the eleventh amendment, not even

at trial. In addition, the state did not

initially raise the issue on appeal, but

only raised sovereign immunity after this

court requested that the parties brief the

issue.

Sims and the FICA contend that this

court unwarrantedly raised the eleventh

amendment defense. They rely on the

Supreme Court's statement: "(Wle have

never held that [the eleventh amendment

defense] is jurisdictional in the sense

that it must be raised and decided by this

court on its own motion." Patsy v. Board

of Regents of the State of Florida, 457

Uses £96, 515 n. 19, 102 S.Ct 2557, 2567 n.

- RAP ~

19, 73 L.Ed.2d 172, 187 n. 19 (19862).

In response to the state's late and

compelled sovereign immunity defense, Sims

and the FICA moved this court to add the

Director of the Division of Motor Vehicles

as a defendant. We grant this motion, even

though we would remand the sovereign

immunity issue to the district court in

other circumstances. }® In this’ case,

however, in light of the state's initial

waiver of the defense, the state's

reluctance to urge the issue before the in

banc court, and the lack of prejudice to

the state and its officials, the district

court would clearly abuse its discretion if

16 the state of Florida's Attorney General

has represented the state's interest in the

lawsuit throughout the litigation.

consequently, the lack of a state

official's name in the style of the case

has not prejudiced the state officials. We

also note that the district court has

granted injunctive relief.

- ASG =

it denied the motion to formally add as a

defendant the Director of the Division of

Motor Vehicles for the State of Florida.

CONCLUSION

In summary, we affirm the district

court's ruling that Fla.Stat. § 320.02(9)

violates the Clean Air Act, 42 U.S.C. §

7522 because Congress has-~ exclusively

reserved to the federal government the

enforcement of federal emission

standards. We reverse the district court's

ruling that Fla.Stat. § 320.02(9) violates

the Safety Act. Accordingly, we affirm in

part and reverse in part.1?

AFFIRMED in part and REVERSED in part.

17 Judge Clark did not participate in the

decision of this case.

- Bo. *

TJOFLAT, Circuit Judge, dissenting:

In its apparent haste to decide the

constitutionality of Fla.Stat. § 320.02(9)

(1987), the court cases over the

jurisdictional requirements of well

established precedent, and in so doing sets

the stage for untold mischief in future

cases. I respectfully dissent on four

separate grounds.

First, in an effort to circumvent the

eleventh amendment bar to this suit, the

court, acting sua sponte, substitutes an

individual for the State of Florida as the

party defendant and then, without giving

him notice and an opportunity to be heard,

enters judgement against him. This

maneuver. which has no foundation in the

law, denies the newly named defendant due

process in the most elementary and

fundamental sense. Second, the majority

today decides a case which is plainly moot

= ASa =

with respect to one of the two appellees,

Myra Holladay Sims. Third, the majority

entertains a claim that the remaining

appellee, Florida Import and Compliance

Association (FICA), lacks standing to

assert. Finally, although Sims' and FICA's

claims were cast as a case arising under

the Constitution and laws of the United

States, they are actually state law claims

that raise a constitutional question in

anticipation of a defense. These claims

thus fall outside of the court's subject

matter jurisdiction.

Because a full understanding of the

Claims that Sims and FICA present is

essential to the proper resolution of these

issues, for purposes of convenience, I

begin in part I with an analysis of their

Claims which illustrates that the district

court lacked subject matter jurisdiction to

entertain this case. My subsequent remarks

- fs >

are organized as follows: In part II, I

address the mootness of Sims' claim; in

part III, I discuss FICAs lack of standing;

and in part IV, I criticize the court's

decision to substitute an individual for

the State as the party defendant without

affording him any of the rudiments of due

process.

The complaint in this case presents two

separate and distinct claims against the

State of Florida; one brought by Sims, the

other by FICA. In an effort to give the

district court subject matter jurisdiction,

Sims and FICA cast their claims as if they

arose under the Constitution or laws of the

United States, see 28 U.S.C § 1331

- AS4 -

(1982).2 Their claims, however, are not

based on the Constitution or laws of the

United States; rather, they are based on

State law.

Sims alleges that under Florida law,

the State, through its Department’ of

Highway Safety and Motor Vehicles (the

Department), is required to title and

because she has satisfied the requirements

1 28 U.S.C. § 1331 (1982) provides: "The

district court shall have original

jurisdiction of all civil actions arising

under the Constitution, laws, or treaties

of the United States." Because Sims and

all of the members of FICA are citizens of

the State of Florida, appellees could not

invoke the district court's diversity of

citizenship subject matter jurisdiciton.

See 28 U.S.C. § 1332 (1982).

. For convenience, I hereinafter use

"title" to refer to the relief Sims seeks,

namely the issuance of title to and

registration for her gray market

automobile.

~ Boo >

Florida imposes on those who wish to title

non-gray market automobiles, but that the

State refuses to do so. See Fla.Stat. §

320,.02(1)}=( 7). Anticipating the State's

defense, Sims goes on to allege that the

State has refused to title her vehicle

because she has not complied with Fla.Stat.

§ 320.02(9) by providing the Department

with proof, in the form of a bond release

letter issued by the National Highway

Transportation Safety Administration

(NHTSA), that she has satisfied the

requirements of the Federal Motor Vehicle

Safety Act, 15 U.S.C. § 1397 (1982).

Finally, in response to this anticipated

defense, Sims presents the federal question

that, she contends gives the district

court, and consequently this court, subject

matter jurisdiction to entertain her

Sulit: whether Fla.Stat. § 320.02(9) is

unconstitutional. In effect, Sims asks the

- A56 -

court to strike the State's defense as

Legally insufficient, see Fed.R.Civ.P.

12(£), and to issue an order compelling the

Department to title her gray market

automobile. 2

FICA's claim, which is brought solely

in a representative capacity for two groups

3 In addition to an order compelling the

Department to title her gray market

automobile, Sims also asks the court, ina

common prayer for relief with FICA, to

enjoin the future enforcement of Fla.Stat.

§ 320.02(9). Sims, however, does not

allege that she intends to import another

Gray market automobile and therefore needs

such relief. Because prospective relief is

not necessary to make Sims' whole, and

Since equity does not grant that which is

not needed, we should not read the

complaint as including a prayer by Sims

that the State be enjoined from enforcing §

320.02(9).

- AS7 -

of claimants,? also arises under state, not

federal, law. The first group of claimants

consists of members who will both import

gray market automobiles into Florida and

Satisfy Florida's requirements for titling

non-gray market automobiles. The second

group of claimants consists of FICA

members, namely import brokers and

mechanics, who charge fees to those who

import gray market automobiles after their

automobiles are conditionally admitted into

the United States. These members contend

that enforcement of Fla.Stat. § 320.02(9)

is chilling importation of gray market

automobiles and thus is causing them to

4 For Simplicity, I refer to FICA's

members collectively as importers, import

brokers, and mechanics. See infra note 15

for the description of FICA's members

contained in the complaint. In the text, I

divide them into two groups; the first

consisting of the importers, the second

consisting of import brokers and mechanics.

- ASS =

lose business. Unlike Sims, however, no

one in either group of FICA claimants seeks

an order requiring the Department to title

any existing gray market automobile.

Rather, they seek in order requiring the

Department to title any gray ~market

automobile that may be imported _ into

Florida in the future.

Once properly characterized, Sims' and

FICA's claims obviously run afoul of the

"“well-pleaded complaint’ rule, "which

prohibits a claimant from involing the

district court's federal question

jurisdiction by alleging that the defense

that the defendant will raise is invalid

under federal law. See C. Wright, Al.

Miller & E. Cooper, Federal Practice and

Procedure: Jurisdiction 2d § 3566

(1984). In the seminal case of Louisville

& Nahsville R.R. Co. v. Mottley, 211 U.S.

149, 29 S.Ct. 42, 53 L.Ed. 126 (1908), the

= -£oF «

Supreme Court stated:

It is not enough that the

plaintiff alleges some anticpated

defense to his cause of aciton,

and asserts that the defense is

invalidated by some provision of

the Constitution of the United

States. Although such allegations

show that very likely, in the

course of the litigation, a

question under the Constitution

would arise, they do not show that

the suit, that is, the plaintiff's

original cause of action, arises

under the Constitution.

Id. at 152, 29 S.Ct. at 43. The Supreme

Court has not wavered in its firm

application of this rule, see e.g.,

Franchise Tax Bd. v. Construction Laborers

Vacation Trust, 463 U.S. 1, 9-11, 103 S.Ct.

2841, 2846-47, 77 L.Ed.2d 420 (1983);

Phillips Petroleum Co. v. Texaco, Inc., 415

U.S. 125, 127-28, 94 S.Ct. 1002, 1004, 39

L.Ed.2d 209 (1974), and we are bound to

follow it.

In sum, the claims Sims and FICA

present are founded on state law-~the right

- A60 -

to recieve a title to an automobile is a

creature of the Florida legislature, not

the Constitution or laws of the United

States.” The federal questions they .raise

concern only the constitutionality of the

State's defense. In accord with the

decision in Mottley, we should notice sua

sponte the absence of subject matter

jurisdiction and direct the district court,

on receipt of our mandate, to dismiss the

2 If one considers how Sims would have

proceeded had she filed suit in state

court, the state law basis of Sims' claim

becomes obvious. Sims would have

petitioned the state circuit court

(Florida's trial court of general

jurisdiction) to issue a writ of mandamus

compelling the director of the Department

to title her automobile. The director, in

his answer to Sims' petition, would have

alleged that Sims was not entitled to

relief because she had not complied with

Fla.Stat. § 320.02(9). Sims, in turn,

would have moved the court to strike that

defense as insufficient on the gound that

it was barred by federal law.

“ oe. =

case.

II.

I turn now to the issue of the mootness

of Sims' claim. At the heart of this

controversy is Sims' impatience with

NHTSA's delay in issuing a bond release

letter, required by Fla.Stat. § 320.02(9)

to title a gray market automobile.’ The

majority acknowledges that on September 18,

1985--one week after trial and three months

6 ‘The majority does not address this

question--whether Sims' and FICA's claims

are based on federal or state law. By

ignoring it, the majority disregards its

continuing duty to ensure that the district

court had subject matter jurisdiction to

entertain the case.

7 at the time Sims filed suit, NHTSA had a

backlog of 14,000 complaince applications

awaiting approval. Because of this

backlog, an owner could expect to wait up

to nine months for NHTSA to issue a bond

release letter.

~ B62 ~

before the district court entered final

judgment for Sims--NHTSA issued Sims her

eagerly awaited bond release letter. Since

Sims had already acquired the necessary

documentation from the Environmental

Protection Agency, she now had all the

documents required by Pia.Stat. §

320.02(9), and nothing prevented her from

obtaining a title for her automobile.

Sims' attorney should have advised the

court of this development immediately; ® had

he done so, the court would have asked

counsel whether here was any need to

continue the litgation, given that Sims had

the power to obtain the precise relief she

was asking the court to provide. There can

8 the Supreme Court has made it plain that

counsel have an affirmative obligation to

call the court's attention to facts which

suggest mootness. See Board of License

Comm'rs v. Pastore, 469 U.S. 238, 240, 105

S.Ct. 685, 686, 83 L.Ed.2d 618 (1985).

3 =

be no question that had the trial court

been so informed, it would have dismissed

Sims' claim as moot.?

Unfortunately, the fact that Sims'

claim had become moot did not surface until

oral argument before the three-judge panel

which initially heard this appeal. During

that argument, Sims' attorney, in response

to 7 inquiry from the court, confessed

that his client had received the NHTSA bond

release letter prior to the entry of final

judgment in the district court, and that

the controversy with the State over her

9 he district court's dispositive opinion

plainly relied on Sims' counsel's

representation that NHTSA had not yet

issued the bond release letter: “Sims

still has not received a bond release

letter from NHTSA, and it is not likely

that she will receive one in the near

future because in July 1985, NHTSA had

14,000 forms to review. The seed of Sims'

complaint lies in this bureaucratic traffic

jam."

- A64 -

automobile had ended.19 Sims' attorney

nonetheless urged the panel to proceed with

the appeal and rule on the

‘constitutionality of the Florida statute,

contending that Sims' controversy with the

State was not moot because it was capable

of repetition, yet evading review.

10 counsel of course recognized that the

panel had a duty to satisfy itself that the

controversy before it was still live. See

C & C Prods., Inc. v. Messick, 700 F.2d

635, 636 (llth Cir. 1983) ("the case must

be viable at all stages of the litigation;

it is not sufficient that the controversy

was live only at its inception."). Once an

appellate court determines that the

controversy has ended, it must remand the

matter to the trial court with directions

tht the judgment be vacated and the matter

dismissed, see United States v.

Munsingwear, Inc., 340 U.S. 36, 39-40, 71

S.Ct. 104, 106-7, 95 L.Ed. 36 (1950), even

when, as the majority notes, ante slip

opinion at 829 n. 15, at___n. 15, the

parties desire a decision on the merits and

"agree" that the case is not moot. See

DeFunis v. Odegaard, 416 U.S. 312, 316, 94

S.Ct. 1704, 1706, 40 L.Ed.2d 164 (1974).

~ ASS -

The majority agrees with Sims that her

case was not moot when the district court

decided it. The majority does so by

incanting the ohrase "capable of

repetition, yet evading review," ante slip

opinion at 830, at ante, as if that phrase

possessed some talismanic power to create

an Article III controversy where, in truth,

one does not exist. We know, of course,

that the phrase contains no such power;

rather, the doctrine merely defiens those

situations in which a seemingly moot case

still meets Article III's requirement of a

genuine, concrete controversy. As the

Supreme Court observed in Los Angles v.

Lyons, 461 U.S. 95, 109, 103 S§.Ct. 1660,

1669, 75 L.Ed.2d 675 (1983), and DeFunis v.

Odegaard, 416 U.S. 312, 319, 94 S.Ct. 1704,

1707, 40 L.Ed.2d 164 (1974), these

situations are "“exceptional"” and require

the plaintiff to prove that the doctrine's

- A66 -

two requisites are met. See Weinstein v.

Braagtorad, €23 U.S. 147, 149, 96 S.Ct. 347,

379, @6 L.Ed.2d 350 (1975).

Because Sims' claim became moot before

the district court entered final judgment,

we must look to the record as it stood when

the court entered judgment in determining

whether the claim was capable of

repetition, yet evading review. If that

record discloses evidence from which the

court could reasonable have concluded that

the claim was likely to recur and, if so,

would evade review, then the district court

had the authority to adjudicate the claim.

The record discloses no evidence to

satisfy the first requirement of the

doctrine, that the ciaim is likely to

recur; consequently, we need not determine

whether the second requirement evading

review, has been met. What the record

reveals is a controversy involving a single

~ Aor =

automobile, a 1976 Mercedes-Benz 450 SEL,

that Sims brought to the Port of

Jacksonville on April 30, 1985. There is

Simply nothing in Sims' complaint or her

testimony at trial from which the district

court could have found that this

controversy might recur,++ much less, as

the cases require, that theré was a

"resonable likelihood" or "demonstrated

probability" that Sims would assert the

same claim against the State at some time

in the’ future. See Honig v. _ voe,

U.S. , , n. 6, 108 S.Ct. 592, 601 n.

6, 98 L.Ed.2d 686. The majority does not

11 the "mere possibility" that Sims would

bring another gray market automobile into '

Florida would not have been enough to

Satisfy the "capable of repetition"

requirement and thereby create an article

III controversy for the district court to

decide. See Murphy v. Hunt, 455 U.S. 478,

462, 102 S.Ct. 1181, 1183-84, 71 L.Ed.2a

353 (1982); Morgan v. Roberts, 702 F.2d

945, 947 (llth Cir.1983).

~ poe *

even attempt to say how Sims' claim might

satisfy this requriement--because, I

believe, the attempt would be futile.+

Instead, the majority simply states that

the record shows that a number of ocher

individuals will import gray market

automobiles into Florida and will suffer

the same injuries as Sims. Because this is

not a class action, a showing of future

injury to others is immaterial to the issue

12 sims Suggests in her brief to this court

on rehearing en banc that her controversy

with the State might recur when she seeks

to re-register her automobile each year as

requried by Fl.Stat. § 320.055. This

Suggestion is baseless for two reasons.

First, a controversy over re-registration

would not be a recurrence of the

controversy described in Sims' complaint.

Second, assuming that it would be, there is

no reason to believe that any such

controversy will arise because we know that

Sims possesses the documents requrired for

annual re-registration under Fla.Stat. §

320.055, which are the same as those

required for initial registration under

Fla.Stat. § 320.02(9).

- AGS -

Lm LS MOOtC, we nave

risdiction tx

if the remaining appellee, FICA, has

Standing on its own to attack Fla.Stat.

02(9). The standing doctrine, like

- A70 -

EEE

the mootness doctrine, +3 is an aspect of

article ie Oe "case or controversy"

requirement. As the Supreme Court has

stated:

the standing question is whether

the plaintiff has alleged such a

personal stake in the outcome of

the "controversy" as to warrant

his invocation of federal-court

jurisdiction and to justify

exercise of the court's remedial

powers on his behalf. The Art.

III judicial power exists only to

redress or otherwise to protect

13 the standing and mootness inquiries are

closely related. See Warth v. Seldin, 422

U.S. 490. 499 n. 10, 95 s.Ct. 2197, 2205 n.

10, 45 L.Ed.2d 343. The standing inquirey

asks whether the plaintiff--as opposed to

someone else--is entitled to relief, while

mootness focuses on "whether the occasion

for judicial intervention persists." Id.

One commentator nas defined mootness as

"the doctrine of standing set in a time

frame: The requisite personal interest

that must exist at the commencement of the

litigation (standing) must continue

throughout its existence (mootness)."

Monaghan, Constitutional Adjudication: The

Who and When, 82 Yale L.J. 1363, 1384

(1973), cited in United States Parole

Comm'n v. Geraghty, 445 U.S. 388, 397, 100

S.Ct. 1202, 1209, 63 L.Ed.2d 479 (1980).

- A7l -

against injury to the complaining

party, even though the court's

judgment may benefit others

collaterally. If federal court's

jurisdiction therefore can be

invoked only when the plaintifé

himself has suffered "some

threatened or actual injury

resulting from the puntatively

illegal action."

Warth v. Seldin, 422 U.S. 490. 498-99, 95

S.Ct. 2197, 2205, 40 L.Ed.2d 343 (1975)

(Citations omitted).

PICA concedes that it is not injured by

the Department's enforcement of the statute

and consequently does not assert on its own

behalf the statute's

unconstitutionality.1!4 FICA contends,

however, that the Department's enforcement

of the statute affects a number of its

14 T° have Standing in its own right FICA

would have to allege injury to itself, as

an association, rather than to its

members. See Center for Auto Safety v.

National Highway Traffic Safety Admin., 793

F.2d 1322, 1328-29 n. 41 (D.C.Cir.1986).

- Bis *

members and argues that it may litgigate

their claims in a representative

capacity.+°

15 tn the complaint, FICA alleged that it

comprised of

persons and Florida business

entities who support improving

opportunities for commerce with

foreign nations in the

importation, use and sale in the

United States of foreign-

manufactured automobiles that are

coverted in this country to comply

with emission and safety standards

of the Clean Air Act and the

Vehicle Safety Act. Plaintiff

FICA's members include importers

automobiles for their personal use

as well as importers for sale, or

dealers; brokers of import

transactions; owners and operators

of automotive conversion and

compliance facilities, equipped to

comply with safety standards

established pursuant to the

Vehicle Safety Act; and owners and

opeators of specialized automotive

testing laboratories, equipped to

comply or verify compliance with

emission standards established

pursuant to the Clean Air Act.

The record discloses almost nothing else

about FICA. The only other reference to

- A73 -

Although an association such as FICA

may, in some Circumstances, have

“representative Standing" to litigate the

Claims of its members, see Warth, 422 U.S.

at 411, 95 $.Ct. at 2211-12, it may do so

only if its members would have Standing in

their own right, had they brought suit

themselves. See Hunt v. Washington State

Apple Advertising Comm'n, 432 U.S. 333,

343-45, 97 S.Ct. 2434, 2441-42, 53 L.Ed.2d

(footnote con't)

FICA is contained in the testimony of Gary

Sims, appellee Sims's husband, who is the

secretary of FICA. Gary Sims testified

that FICA "is a group of individuals that

either import automobiles as dealers, they

convert them as conversion people, they

sell the automobile parts to the people who

convert them, they,--they own the testing

facilities, they are individuals who import

cars for their personal use."

- A74 -

<<<

838 (1977)16 For the members of FICA to

have standing in their own right, they

would have to show that they have suffered

an actual or threatened injury that is

legally cognizable, fairly traceable to the

allegedly illegal conduct, and likely to be

redressed by a favorable decision. Valley

Forge Christian College v. Americans United

for Separation of Chruch & State, Inc., 454

U.S. 464, 472, 102 S.Ct. 752, 758, 70

L.Ed.2d 700 (1982); see also Allen v.

16 tn addition, FICA must show that "the

interests it seeks to protect are germane

to the jassociation's] purpose [and that]

neither the claim asserted nor the relief

requested requires the participation of

individual members of the lawsuit." Hunt

v. Washington State Apple Advertising

Comm'n, 432 U.S. 333, 343, 97 S.Ct 2434,

2441, 53 L.Ed.2d 838 (1977); see also

Pennell v. City of San Jose, U.S.

108 S.Ct. 849, 855, 99 L.Ed.2d 1 (1988);

International Union, United Auto, Aero. &

Argic. Implement Workers of America v.

Brock, 47/7 U.S. 2/4, 281-82, i106 S.Ct.

2923, 2529, 91 L.EG.24 228 (1986).

- ATS -

———————

Wright, 468 U.S. 737, 752, 104 S.Ct. 3315,

3325, 82 L.Ed.2d 556 (1984).

FICA attempts to meet its burden of

establishing its members's standing by

alleging that Fla.Stat. § 320.02(9) injures

its members who import gray market

automobiles for commercial or personal use

by denying them the right to obtain Florida

title, and in effect, the right to drive

their gray market automobiles. With

respect to its other members--import

brokers and mechanics--FICA alleges that.

they are injured indirectly: because the

Statute effectively prohibits owners from

titling and driving their gray market

automobiles pending final admission into

the United States, Florida residents may no

longer wish to import gray market

automobiles; as a result, the business of

the import brokers, who assist owners in

the importation of gray market automobiles,

- A76 -

and of the mechanics, who modify such

automobiles to bring them into compliance

with federal emissions and safety

standards, will decline. On the basis of

these allegations, FICA represents that its

“members would have standing to sue in

their own right for the relief requested."

In my veiw, FICA's allegations of fact

are insufficient as a matter of law to

demonstrate that FICA has’ standing to

challenge the State's enforcement of the

Statute on behalf of either group of

members. I make this statement after

accepting as true FICA's allegations of

fact regarding standing, as Warth

“Ars =

s of ruling on a mot

Ss for want of standing,

ial and reviewing

courts accept as true all

material allegations of the

complaint, and must construe the

complaint in favor of the

complaining party. At the same

time, it is within the trial

court's power to allow or to

require the plaintiff to supply,

by amendment to the complaint or

by affidavits, further

particularized allegations of fact

deemed supportive of plaintiff's

Standing. If, after this

Opportunity, the plaintiffs

Standing does not adequately

appear from all materials of

record, the complaint must be

dismissed.

422 U.S. 490, 501-02, 95 S.Ct. 2197, 2206-7

(1975) (citations omitted). In order to

determine the standing question, I not only

take the allegations in the complaint as

true, but I also deem FICA's complaint as

amended to conform to any evidence relevant

to standing introduced at trial. see

Fed.R.Civ.Pr. 15(b). i a

- A78 -

complaint does not identify anyone who has

been or will be denied title as a result of

the Department's enforcement of Fla.Stat. §

320.02(9). Indeed, all that the complaint

alleges is that “importers of automobiles

for their personal use as well as for

resale ° ‘ ; support improving

opportunities for commerce with foreign

nations in the importation, use and sale in

the United States of foreign-manufactured

n18

automobiles" and, presumably, want

Fla.Stat. § 320.02(9) declared

unconstitutional. This allegation, by

itself, is plainly insufficient to

establish injury to the importers.

The importers' case is

18 at trial, FICA presented no further

evidence concerning the standing of this

group of members; hence, we must decide the

standing of this group, and thus of FICA,

on the basis of the factual allegations

quoted in the text.

- A79 -

indistinguishable from the home builders

Association (Home Builders) brought suit

against the town of Penfield, New York.

Home Builders contended that the town's

Ordinance prohibiting low-income housing

deprived its members of "substantial

business opportunties and profits," Warth,

42 U.S. at $15, 95 §.Ct. at 2213, and

sought an order enjoining the ordinance's

enforcement. Home Builders alleged that

its members were injured by the ordinance,

but failed to identify any member who had

attempted to build a low-income housing

project in Penfield. The district court

dismissed Home Builders' complaint for lack

of standing. The Court of Appeals for the

Second Circuit affirmed. Home Builders

thereafter sought review in the Supreme

Court.

The Supreme Court agreed with the

conclusion of the lower courts and held

-— -Aee -

that Home Builders lacked standing to

attack the ordinance. The Court stated:

[Home Builders] can have standing

as the representative of its

members only if it has alleged

facts sufficient to make out a

case or controversy had the

members themselves brought suit.

No such allegations were made.

The complaint refers to no

specific project of any of its

members that is currently

precluded either by the ordinance

or by respondents’ action in

enforcing it. There is no

averment that any member’ has

applied to respondents for a

building permit or a variance with

respect to any current project.

Indeed, there is no _ indication

that respondents have delayed or

thwarted any project currently

proposed by Home Builders'members,

or that any of its members has

taken advantage of the remedial

processes available under the

ordinance. In short, . . . Home

Builders has failed to show the

existence of any injury to its

members of sufficient immediacy

and ripeness to warrant judicial

intervention.

Warth, 422 U.LS. at 516, 95 S.Ct. at

2214. Similarly, in Anderson v. City of

Alpharetta, 770 F.2d 1575, 1582-83 (11th

- es. =

Cir.1985), we affirmed the district court's

holding, which followed Warth's analysis,

that an organization that operated a

service to find housing for low-income

minority families lacked standing to

challenge a Statute that forestalied

development of a particular housing project

because the organization because the

Organization failed to allege that any

specific individual had sought, or would

seek, housing in the area of the project.

In the case before us, as in Warth and

Anderson, no factual basis exists in the

record to support a finding that FICA's

- A82 -

members have been or will be injured.29 In

the absence of such a basis, we must

conclude that FICA lacks standing to

Maintain this suit on behalf of its members

who import gray market automobiles for

personal or commercial use.

Nor has FICA demonstrated that it has

standing to sue on behalf of its second

group of members--import brokers and

mechanics. FICA has not identified any one

in this group whose business has_ been

adversely affected by the enforcement of

19 the holdings of Warth and Anderson are

squarely on point and would seem to control

our decision. Inexplicably, the majority

ignores these holdings. It cites Warth

solely for the elementary principle that in

ruling on a motion to dismiss for lack of

Standing, a court must accept the

plaintiff's allegations of fact as true,

and it fails even to acknowledge Anderson's

existence. What are the district judges of

Our circuit to do the next time a defendant

challenges the plaintiff's standing under

Warth and Anderson, and the plaintiff, in

response, cites today's holding?

- AS3 ~

Fla.Stat. § 320.02(9). Furthermore, even

if FICA had identified someone, there are

two reasons why such member, and thus FICA,

would lack standing to challenge’ the

Statute.

First, the indirect injury the import

brokers and mechanics allege that they will

suffer is too remote and uncertain to

constitute the “injury in fact" required

for standing. The possibility that the

future enforcement of the statute may cause

a significant decrease in the importation

of gray market automobiles and that, as a

consequence, the import brokers and

mechanics may suffer a loss of business is

highly speculative, and unadorned

speculation will not suffice to invoke the

federal judicial power.'" Diamond vy.

Charles, 476 U.S. 54, 66, 106 S.Ct. 1697,

1705, 90 L.Ed.2d 48 (1986) (citing Simon v.

Eastern Kentucky Welfare Rights Org., 426

- A84 -

U.S. 26, 44, 96 §.Ct. 1917, 1927, 48

L.Ed.2d 450 (1976) (denying standing to a

pediatrician who argued that enforcement of

a law requiring doctors to preserve the

lives of aborted fetuses would enlarge the

pool of his potential fee-paying

patients). The burden is on the plaintiff

to allege concrete injury that is "distinct

and palpable" and not "abstract" or

"hypothetical." Allen v. Wright, 468 U.S.

737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d

556 (1984).

If, as a matter of policy, we were to

follow the majority's approach and

disregard this limitation on the standing

those alleging indirect injury, then we

would also have to recognize the claims of

anyone else who might allege that the

enforcement of Fla.Stat. § 320.02(9) hurt

his business. I can think of scores of

possible plaintiffs who could allege that

- ASS =<

"but for" the State's enforcement of the

statute, they would have been better off

economically: the banks that would have

financed the'\purchase of the gray market

automobiles that were not imported; the

banks' employees; e Port of Jacksonville

that would have received the automobiles

that were not imported; the Port's

employees; the shipping, trucking, a ail

companies that would have transported the

imported automobiles to their ultimate

destination. In short, under the

majority's approach to Standing, the

universe of possible plaintiffs is endless.

Even if the import brokers and

mechanics could show that they suffer a

sufficiently concrete injury, their

standing in this case has a_— second

defect: the right which they seek to

assert--the right to obtain title to a gray

market automobile--is not theirs, but

- AB6 -

rather belongs to the automobile owners.

Prudential limitations on the_ standing

doctrine require’ that "the plaintiff

generally must assert his own legal rights

Or interests, and cannot rest his claim to

relief on the legal rights or interests of

third parties." Warth, 422 U.S. at 499, 95

S.Ct. at 2205; see also Phillips Petroleum

Co. v. Shutts, 472 U.S. 797, 955, 104 S.Ct.

2839, 2846, 81 L.Ed.2d 786 (1984). The

reasons for this rule are twofold. "The

limitation ‘frees the Courts . . . from

premature interpretations of statutes in

areas where their constitutional

application might be cloudy,' and it

assures the court that the issues before it

will be concrete and sharply presented."

Joseph H. Munson, 467 U.S. at 955, 104

S.Ct. at 2846 (citing United States v.

Raines, 362 U.S. 17, 22, 80 S.Ct. 519, 523,

- A87 -

4 L.Ed.2d 524 (1960). 29 This rule requires

us to hold that the import brokers and

mechanics do not have third party standing

to challenge Fla.Stat. § 320.02(9).

Finally, I address the majority's

assertion that if the various groups of

FICA members "do not have standing, then no

individual or entity would have- the

requisite standing." Ante slip opinion at

829, at ° The majority makes this

assertion, in a last ditch effort to find

standing for FICA's claim, squarely in the

face of Supreme Court pronouncements that

Such an assertion is meaningless. As the

20 the limitation is subject to exception

where there is (1) a close relationship

between the third party and the party whose

rights are asserted, and (2) the existence

of obstacles preventing the latter from

asserting its rights on behalf of itself,

see Singleton v. Wulff, 428 U.S. 106, 113-

ll6, 96 S.Ct. 2868, 2874-75, 49 L.Ed.2d 826

(1976), but these conditions are not

present in this case.

- ASS -

Supreme Court has repeatedly stated,

"'{t]he assumption that if [the plaintiffs]

have no standing to sue, no one would have

standing, is not a reason to find

Standing.'" See Valley Forge Christian

College v. Americans United for Separation

of Chruch and State, 454 U.S. 464, 489, 102

S.Ct. 752, 767, 70 L.Ed.2d 700 (1982)

(quoting Schlesinger vV. Reservists

Committee to Stop the War, 418 U.S. 208,

227, 94 S.Ct. 2925, 2935, 41 L.Ed.2d 705

(1974)).

To summarize, I conclude that none of

FICA's members have standing to challenge

Fla.Stat. § 320.02(9). FICA therefore

lacks "representational standing" to

Challenge the statute on their - behalf.

Because Sims' claim is moot and FICA lacks

Standing, no "case or controversy" exists

over which this court may exercise its

judicial power. We therefore should remand

- A&S -

SE ——

this case to the district court with the

instruction that it be dismissed.

This case began as a suit against the

State and one of its agencies--a suit

barred by the eleventh amendment.“ It is

well settled that, in the absence of the

state's consent, only suits seeking

21 the eleventh amendment provides:

The Judicial power of the United

states shall not be construed to

extend to any suit in law or equity,

commenced or prosecuted against one

of the United States by citizens of

another State, or by Citizens or

Subjects of any Foreign State.

U.S. Const. amend. XI. As it has been

interpreted, the eleventh amendment

proscription applies to suits brought by a

citizen against his own state or an agency

of the state. See Hans v. Louisiana, 134

U.S. 1, 10, 10 S.Ct. 504, 505, 33 L.Ed.

842 (1890); see also Welch v. State Dep't

of Highways & Public Transp.,

U.S. , 107 S.Ct. 2941, 2945-46, 2949-

53, 97 L.Ed.2d 389 (1987).

-~ ASG =

injunctive relief against a named state

official, as opposed to a state department

Or agency, are exempted from the eleventh

amendment proscription. See Pennhurst

State School & Hosp. v. Halderman, 465 U.S.

89, 102, 104 S.Ct. 900, 909, 79 L.Ed.2d 67

(1984). The complaint filed by Sims and

FICA does not fall within this exemption

because it did not name the director of the

Department of Highway Safety and Motor

Vehicles or any other state official as a

we.

party defendant. ??

The majority recognizes

that this suit cannot be maintained against

the named defendants--the State of Florida

22 the complaint named the Attorney General

of Florida, Jim Smith, as a defendant

solely because Fla.Stat. § 86.091 (1987)

requires the plaintiff in a suit in state

court that challenges the constitutionality

of a Florida statute to notify the Attorney

General of the suit by serving him a copy

of the complaint. This statute does not

apply to suits in federal court.

Accordingly, since Sims and FICA sought no

relief against the attorney general, they

moved the district court to dismiss him

from the case. The State, having no reason

to oppose the motion, agreed to the

dismissal, and on August 29, 1985 the

district court entered an order dropping

the attorney general as a party defendant.

~ Ape ~

and the Department. 23

23 The majority seems to recognize this

point reluctantly. The majority notes that

the State did not present the sovereign

immunity defense until the panel that

initially considered this appeal raised the

issue, and appears to criticize the panel

for doing so with the following

Statement: "'[wle have never held that

[the eleventh amendment defense] is

jurisdictional in the sense that it must be

raised and decided by this court on its own

motion.' Patsy v. Board of Regents of the

State of Florida, 457 U.s. 496, 515 n. 19,

102 S.Ct. 2557, 2567 n. 19 [73 L.Ed.2d 172]

(1982)." See ante slip opinion at 830,

at °

Although the state did not plead the

sovereign immunity defense in the district

court, the “defense sufficiently partakes

of the nature of a jurisdictional bar so

that it need not [have been] raised in the

trial court.* Edelman v. Jordan, 415 U.S.

651, 678, 94 §.Ct. 1347, 1363, 39 L.Ed.2d

662 (1974). Patsy does not prohibit an

appellate court from sua sponte raising the

issue of sovereign immunity, as the

majority implies. The Supreme Court, in

Patsy merely noted that, because the

parties before it had not briefed the

eleventh amendment issue and because the

possibility existed that the state had

Statutorily waived the defense as to the

particular circumstances of the suit, the

Court deemed it inappropriate for it,

rather than the district court, to decide

the issue. Patsy, 457 U.S. at 515 n. 19,

~ Age *

Yet, instead of vacating the district

court's judgment and remanding the case to

the district judge for the entry of a

(footnote con't)

102 §.Ct. at 2567 n. 19. The Court

therefore reversed the district court's

dismissal, which was based on an erroneous |

view that exhaustion of state remedies-fS

required in section 1983 cases, and

suggested that_the-district court address

the elevemrth amendment question on

__-——fémand. Id. In contrast to Patsy, both

parties to this action have fully briefed

the eleventh amendment issue, and at oral

argument before the en banc court the State

vigorously pressed for dismissal on

eleventh amendment grounds. Also in

contrast to Patsy, there is no possibility

that the State has waived sovereign

immunity in this case. The Florida

constitution requires "specific, clear, and

unambiguous language in a statute to

constitute a waiver of sovereign

immunity." Manatee County v. Town of

Longboat Key, 365 So.2d 143, 147 (Fla.

1978). Sims and FICA have not argued, nor

has this court uncovered, the existence of

such a legislative enactment. Accordingly,

the panel's action in raising the eleventh

amendment issue was not “unwarranted."

- A94 -

judgment of dismissal, 74 the majority,

acting sua sponte, simply substitutes an

individual--the director of the

24 This court could defer ruiing on the

jurisdictional issues that I have discussed

and, aS an alternative disposition, direct

that on receipt of our mandate the district

court grant the plaintiffs leave to amend

their complaint--by dropping the State and

the Department from the suit, substituting

for them the director of the Department as

party defendant, and making new allegations

of fact demonstrating the director's

liability to the plaintiffs--and then, that

process be served upon the new defendant.

The majority tacitly rejects this

alternative because such a disposition

would, obviously, prevent it from deciding

the constitutionality of Fla.Stat. §

320.02(9). Moreover, the majority knows

that if this case were remanded to the

district court--with instructions that the

court grant the plaintiffs leave to amend,

as described above--the merits may not be

reached. After granting the plaintiffs

leave to amend, the district court might

dismiss the case for lack of subject matter

jurisdiction or a justiciable controversy

because Sims' claim is moot and FICA lacks

Standing to sue.

~ Ago =

Department ?°

--for the State as the party

defendant, and then enters judgment against

him. As the following discussion

manifests, the majority's maneuver, which

PO Ae Na er emt

it is unprincipled, constituting a denial

of due process in the most-elementary and

fundamental sense.

Due process--for that matter common

sense--requires that an individual against

whom a permanent injunction is to be

entered be given notice of the claims

against him and an opportunity to be

25 after the three-judge panel assigned to

this case raised the eleventh amendment

issue at oral argument, Sims and FICA filed

a motion to add Charles Brantley, the

director of the Department, as a party

defendant. The panel denied the motion on

May 26, 1987, and Sims and FICA have not

renewed it. The court therefore acts sua

sponte in substituting Brantley as the

party defendant at this time.

- ASG -

heard. See generally Fed.R.Civ.P. 65; see

also cC. Wright & A. Miller, Federal

Practice and Procedure § 2956 (1973).

Where, as here, the individual does not

voluntarily appear in the case and consent

to the entry of judgment, due _ process

requires that he be served with process and

given a chance to respond to his

adversary's claim. To me, this notion is

"due process in the primary sense," Joint

Anti-Fascist Refugee Comm. v. McGrath, 341

U.S. 123, 161, 7i- S.Ct. 624, 643, 95 L.Ed.

— .

817 (1951) (Frankfurter, J.)~~{quoting

Art

Brinkerhoff-Faris Trust & Savings Co. v.

Hill, 281 U.S. 673, 681, 50 S.Ct. 451, 454,

74 L.Ed. 1107 (1930)). "It is a rule as

Old as the law .. . that no one shall be

personally bound until he has had his day

in court." Galpin v. Page, 85 U.S. 350,

368 (18 Wall.), 21 L.Ed 959 (1873).

- A97 -

I have no doubt that the judges making

up the majority subscribe to this principle

of fairness. They could have honored this_

principle by vacating the district court's

judgment and remanding the case to the

district col¥t with instructions that that

court either dismiss the plaintiffs' suit

without prejudice or permit the plaintiffs

to amend their complaint, substitute the

director of the Department as the party

defendant, and begin their case anew-~-as I

have noted. See supra note 24. But this

would have denied the majority the power,

under article Lit, of deciding the

constitutionality of Fla.Stat., §

320.02(9). The majority knows that if we

were to decide the constitutionality of

this statute and at the same time vacate

the district court's judgment, we would be

rendering an archetypical provisional

decision--the sort of decision article III

- ASS <

precludes us from making. See Escambia

County v. McMillan, 466 U.S. 48, 51, 104

S.Ct. 1577, 1579, 80 L.Ed.2d 36 (1984)

(federal courts do not decide

constitutional questions unnecessarily.);

Flast v. Cohen, 392 U.S. 83, 96, 88 S.Ct.

1942, 1950, 20 L.Ed.2d 947 (1968) ("'[T]he

Oldest and most consistent thread in the

federal [law] of justifiability is that the

federal courts will not give advisory

opinions.'") (quoting C. Wright, Federal

Courts 34 (1963)). Our decision would be

provisional because it would take effect

only if the district court, on remand,

granted the plaintiffs leave to amend,

rejected the jurisdictional arguments I

have advanced here, and reached the merits

of the plaintiffs' constitutional attack on

the Florida statute. Only then would our

provisional decision have meaning; it would

oe persuasive authority for the decision on

- £Oo ~

the merits that the district court would

then be called upon to make.

The only way the majority can decide

this case without transgressing article

eS he prohibition against provisional

decisions is to do what it has done;

substitute the director of the Departnent

for the State as the party defendant and

treat the district court's judgment as

having been entered against him. This is

not a case, however, in which the law

permits such a substitution. A court of

appeals can substitute a state official as

the party defendant only in cases in which

his predecessor in office has been sued in

his official capacity. In such cases,

Fed.R.App.P. 43(c)(1) provides for

Substitution automatically; the successor

official becomes bound to the district

court's judgment without being served with

process and accorded a hearing. A hearing

- A100 -

is not required because the law presumes

that the successor's interest, qua office

holder, has been fully represented in the

proceedings by his predecessor.

This is, instead, a case in which the

new party's predecessor has never appeared

in the case; consequently, due process

requires that the new party be served with

process and provided an opportunity to be

heard. This is the necessary, and plain,

implication of Rule 43(d)(1): unless the

new party is the "successor" of a "public

officer" who has been sued "in his official

capacity," due process’- precludes his

automatic substitution at the appellate

level as inherently prejudicial.

The majority circumvents Rule 43(c)(1)

by fashioning a new rule; a state official

may be substituted for the state as the

party defendant where the state fails to

plead the sovereign immunity defense in the

~The =

district court and is reluctant to urge the

defense on appeal, and neither the state

nor its substituted official will be

prejudiced by the substitution. ?® The

majority implies that it would have granted

the director the right to service of

process and a hearing--in the district

court--if the state had not "reluctantly"

raised the sovereign immunity defense. The

majority also implies that it would have

granted the director such fundamental due

process if its sua sponte issuance of the

26 In the majority's words, its action in

substituting the director as the party

defendant; and binding him to the district

court's injunction cannot be considered as

unfair because of "the state's initial

waiver of the defense, the state's

reluctance to urge the issue before the in

banc court, and the lack of prejudice to

the state and its officals, ... ." See

ante slip opinion at 831, at .

”

=“ Al0O2 -

injunction against the director,’

and its

subjection of him to the district court's

contempt power, worked any prejudice

against him.

Finally, even if it could be said that

the majority's new rule is valid--that it

passes constitutional muster and is not

foreclosed by Rule 43(c)(1)--I would remand

the case to the district court to accord

the director his due process rights. I

would do so because, contrary to. the

majority's view, (l) the state's urging of

the sovereign immunity defense has not been

"reluctant," and (2) enjoining a state

officer without notice and an opportunity

to be heard is inherently prejudicial.

27 the en banc court's decision binding the

director, in his official capacity, to the

injunction issued against the State and the

Department is tantamount to the issuance of

an injunction against him.

- Rigs =

———E—E————————

For the foregoing reasons, I

respectfully dissent.

COX, Circuit Judge, dissenting:

I concur in Part IV of Judge Tjoflat's

dissenting opinion, and I would not reach

the other issues presented.

- A104 -

APPENDIX Bl.

MYRA HOLLADAY SIMS and FLORIDA IM-

PORT AND COMPLIANCE ASSOCIATION

Plaintiffs--Appellees,

vs.

STATE OF FLORIDA, DEPARTMENT

OF HIGHWAY SAFETY AND MOTOR

VEHICLES, Defendant--Appellant.

No. 86-3055.

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT.

pec. 2, i987.

Before TJOFLAT and HATCHETT, Circuit

Judges, and EATON , District Judge.

HATCHETT, Circuit Judge

The State of Florida, and the

Department of Highway Safety and Motor

Vehicles, appeal from the district court's

declaration that Florida Statute Ss

Honorable Joe Eaton, Senior U.S.

District Judge for the Southern District of

Florida, sitting by designation.

- £405

320.02(9) is unconstitutional because it is

preempted under the supremacy clause and

violates the commerce clause of the United

States Constitution. We affirm in part and

remand.

FACTS

On April 30, 1985, Myra Holladay Sims

imported from Europe an automobile

popularly known as a "gray market"

automobile.?2

"Gray market" automobiles are

imported automobiles which are not designed

or maufactured to comply with United States

emissions and safety standards. Florida

Import and Compliance Association (FICA) is

a trade association whose members” are

directly involved in the importation of

1 sims purchased the used 1976 Mercedes

Benz 450 SEL from Ulrich Kieserwalter of

Bonn, West Germany.

- AlQ6 -

eccucst

gray market automobiles.

Two federal statutes govern the

importation of foreign manufactured

automobiles into the United States. The

Clean Air “Act, 42 -°0.8.C.-~§.7$22,. ana the

Safety Act, 15 U.S.C. § 1397, bar the

importation of motor vehicles that do not

comply with the applicable federal

emissions and . safety standards.

Specifically, the Clean Air Act prohibits

the sale, or the offering for

sale, or the introduction, or

delivery for introduction, into

commerce, or (in the case of any

person, except as_ provided by

regulation of the Administrator),

the importation into the United

States, of any new motor vehicle

Or new motor vehicle engine,

manufactured after the effective

date of regulations under this

part which are applicable to such

vehicle or engine unless_~ such

vehicle or engine is covered by a

certificate of conformity issued

(and in effect) under regulations

- Al07 -

prescribed [by this statute]?

42 U.S.C. § 7522(a)(1). Also, under

2 The definition of "new car" under the

Clean Air Act as it relates to gray market

automobiles is not based on whether the

automobile has previously been sold prior

to its importation into the United States:

(3) Except with respect to

vehicles or engines imported or offered

for importation, the term ‘new motor

vehicie' means a motor vehicle the

equitable or legal tile to which has

never been transferred to an ultimate

purchase; and the term ‘new motor

vehicle engine' means an engine in a new

motor vehicle or a motor vehicle engine

the equitable or legal title to which

has never been transferred to the

ultimate purchaser; and with respect to

‘imported vehicles or engines, such terms

mean a motor vehicle and engine,

respectively, manufactured after the

effective date of a regulation issued

under section 7521 of this title which

is applicable to such vehicle or engine

(or which would be applicable to such

vehicle or engine had it been

manufactured for importation in=o the

United States).

42 U.S.C. § 7550(3) (emphasis added).

- A108 -

section 7522(b)(2), the statute provides

that

[t]he Secretary of the Treasury

and the Administrator [of the

Environmental Protection Agency

(EPA)] may, by joint regulation

provide for deferring final

determination as to admission and

authorizing the delivery of such a

motor vehicle or engine offered

for import to the owner or

consignee thereof upon such terms

and conditions (including the

furnishing of a bond) as may

appear to them appropriate to

ensure hat any such motor vehicle

or engine will be brought into

conformity with the’ standards,

requirements, and limitations

applicable to it under this

part. The Secretary of the

Treasury shall, if a motor vehicle

or engine is’ finally refused

admission under this’ paragraph,

clause disposition thereof in

accordance with the customs laws

unless it is exported, under

regulations prescribed by such

Secretary, within ninety days of

the date of notice of such refusal

or such additional time as may be

permitted pursuant to such

regulations, except that

disposition in accordance with the

customs laws may not be made in

such manner as may result,

directly or indirectly, in the

sale, to the ultimate customer, of

a new motor vehicle or new motor

- A109 -

vehicle engine that fails to

comply with applicable standards

of the Administrator under this

part.

Similarly, the Safety Act provides that

"(n]o person shall manufacture for sale, or

introduce or deliver for introduction in

interstate commerce, or import into the

United States, any motor vehicle [unless it

is in conformity with applicable federal

motor vehicle safety standards])." 15

U.S.C. § 1397(a)(1)(A). In addition, that

statute provides as follows:

[T]he Secretary of the Treasury

and the Secretary [of the National

Highway Transportation Safety

Administration, Department of

Transportation (DOT)] may, by. .

: regulations, provide for

authorizing the importation of

such motor vehicle or item -of

motor vehicle equipment into the

United States upon such terms and

conditions (including furnishing

of a bond) as may appear to them

appropriate to ensure that = any

such motor vehicle or item of

motor vehicle equipment will be

brought into conformity with any

applicable federal motor vehicle

safety standard prescribed under

- All@ =

this subchapter, Or will be

exported or abandoned to the

United States.

i8 U.S.C. § 1397(8F{ 3).

Despite general prohibitions against

the importation of nonconforming motor

vehicles into the United States, Congress,

under the above provisions, authorized the

importation of gray market vehicles upon

the furnishing of a bond or other means of

assuring that federal environmental and

safety laws are not unlawfully

circumvented. The EPA, the DOT, and the

Treasury Department promulgated regulations

governing the importation of gray market

vehicles. See generally 19 C.F.R. §§

12.73, 12.80; 40 C.F.R. Part 85, Subpart P

and 49 C.F.R. Part 571. Under these

regulations, a gray market vehicie is

conditionally admitted into the United

States for limited purpose of enabling the

importer to comply with federal emissions

~ Rai

and safety laws. The importer must post an

entry bond with the United States Customs

Service (Customs) for an amount equal to

the value of the vehicle plus the customs

duty. See Automobile Importers Compliance

Association, Handbook of Vehicle

Importation, 21 (1984). In addition, the

importer must sign a statement indicating

that the motor vehicle emission standards

but will be brought into conformity with

such standards." 19 C.F.R. §

12.73(b) (5) (x) (1986). Finally, the

importer must declare that the vehicle "was

not manufactured in conformity [with] all

applicable safety standards, but it has

been or will be brought into conformity."

* Reese

19 C.F.R. § 12.80(b)(1)(iii).?

3 Title 19 C.F.R. § 12.80(b)(1)(iii) reads

as follows:

(b) Requirements for entry and

release.

(1) [Elach vehicle...offered for

introduction into the Customs territory of

the United States shall be denied entry

unless the importer or consignee files with

the entry a declaration, in duplicate,

which declares or affirms one of the

following:

(iii) The vehicle or equipment item was

not manufactured in conformity [with] all

applicable safety standards, but has been

or will be brought into conformity. Within

120 days after entry, or within a period

not to exceed 180 days after entry, if

additional time is granted by the

Administration, National Highway Traffic

Safety Administration (“Administrator,

NHTSA)"), the importer or consignee will

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