# Petition for Writ of Certiorari — Florida Department of Highway Safety & Motor Vehicles v. Sims > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1449%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 493 U.S. 815 ## Text RR-1 Qk No. = ——— a | 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? ii 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 iv 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 44 50 63 la 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 vi 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, 18 31 19 33 41 21 23 19 62 31 Hillsborough County v. Automated Medical Labs, 471 U.S. 707 (1985) 31-34 39 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) Vl }- 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, 39 18 17 18 37 57 37 57 45 34 a6 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 51 56 59 59 52 195 £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) xi 44-46 ae 46 17 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 38 29, 30, 36 3, 38, 47 38 38, 47 19 FLORIDA Section Florida Section Florida Statutes (1987) STATUTES 320.02(9), Statutes, (1985) 768.28(16), xiii passim 20 I ee! = : = - — ae hp re: 7 i Loh , 5 ta Rs as is = See = 4 aT ey i I : 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 i 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 10 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. 11 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 12 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. 13 REASONS FOR GRANTING THE WRIT I. 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 14 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. 15 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. 16 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. 17 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. 18 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. 19 (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 20 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. 21 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 22 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. 23 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. 24 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. 25 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 26 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 27 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. 28 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 29 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 30 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 a2 (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 32 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 33 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 34 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 35 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 36 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 a7 0 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 38 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, 39 206 (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 40 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 41 requirements are first fulfilled. The untoward result of the decision below is that the states must title and register vehicles that are not legally in 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 42 registration is no more burdensome that requiring proof of insurance. 43 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 44 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. 45 265 (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. 46 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. 47 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 48 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. 49 SS 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. % 50 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 51 (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). 52 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 53 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. 54 ol 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). 55 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. 57 653. 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 58 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). 59 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 60 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. 61 ee 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. 62 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 63 ‘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 - EE 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 = Pe 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. ee 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 B. 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 8 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 a 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. * 6, e & 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. J L.Ed.2d 66 (1979). In satisfying the initial article III standing requirement-- an allegation of "a distinct and palpable ,T 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 register Sim's and other owners gray market 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. I. 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 2 register her gray market automobile 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, 4 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1449%3A1. Public record. Not legal advice.