BH MEDIA GROUP, INC., d/b/a Richmond Times-Dispatch v. Harold W. Clarke

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-1769
BH MEDIA GROUP, INC., d/b/a Richmond Times-Dispatch; GUARDIAN NEWS
& MEDIA, LLC; THE ASSOCIATED PRESS; GANNETT CO., INC.,
Plaintiffs - Appellants,
v.
HAROLD W. CLARKE, in his official capacity as Director of the Virginia
Department of Corrections,
Defendant - Appellee,
-------------------------------------------
REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS AND 23 MEDIA
ORGANIZATIONS,
Amicus Supporting Appellants.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. Robert E. Payne, Senior District Judge. (3:19-cv-00692-REP)
Submitted: April 5, 2021 Decided: April 15, 2021
Before WYNN, THACKER, and QUATTLEBAUM, Circuit Judges.
Vacated and remanded with instructions by unpublished per curiam opinion.

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Craig T. Merritt, David B. Lacy, Gordon M. Phillips, CHRISTIAN & BARTON, LLP,
Richmond, Virginia; David A. Schulz, MEDIA FREEDOM AND INFORMATION
ACCESS CLINIC ABRAMS INSTITUTE YALE LAW SCHOOL, New York, New York;
Charles Crain, Michael Linhorst, MEDIA FREEDOM AND INFORMATION ACCESS
CLINIC ABRAMS INSTITUTE YALE LAW SCHOOL, New Haven, Connecticut, for
Appellants. Mark R. Herring, Attorney General, Michael A. Jagels, Acting Deputy
Attorney General, Margaret Hoehl O’Shea, Assistant Attorney General, Toby J. Heytens,
Solicitor General, Martine E. Cicconi, Michelle S. Kallen, Deputy Solicitors General,
Jessica Merry Samuels, Assistant Solicitor General, Kendall T. Burchard, John Marshall
Fellow, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee.
Thomas S. Leatherbury, Director, First Amendment Clinic, SOUTHERN METHODIST
UNIVERSITY DEDMAN SCHOOL OF LAW, Dallas, Texas; Bruce D. Brown, Katie
Townsend, Caitlin Vogus, REPORTERS COMMITTEE FOR FREEDOM OF THE
PRESS, Washington, DC; Ethan Nutter, VINSON & ELKINS LLP, Austin, Texas; Parker
Cragg, Shelby Hart-Armstrong, VINSON & ELKINS LLP, Houston, Texas, for Amici
Curiae.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
BH Media Group, Inc., d/b/a Richmond Times-Dispatch; the Associated Press;
Guardian News & Media, LLC; and Gannett Company, Inc. (collectively, Appellants) filed
a 42 U.S.C. § 1983 complaint against Harold W. Clarke, in his official capacity as Director
of the Virginia Department of Corrections (VDOC). Plaintiffs sought declaratory and
injunctive relief on their claim that certain provisions of the VDOC’s protocol for
administering the death penalty violated the First Amendment public right of access to
view the entirety of executions carried out by the Commonwealth of Virginia. The district
court granted Clarke’s motion to dismiss the complaint pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, concluding that the public right of access does not apply
outside the context of the criminal adjudication process, from which executions are
excluded. Appellants seek review of that judgment, arguing that the district court’s
analysis represents an unduly restrictive reading of the First Amendment’s public right of
access. The Reporters Committee for Freedom of the Press and 23 media organizations
also have filed an amici curiae brief∗ similarly disputing the district court’s reasoning.
∗ Amici curiae include the Reporters Committee for Freedom of the Press, The
Atlantic Monthly Group LLC, E.W. Scripps Company, International Documentary
Association, Los Angeles Times Communications LLC, The Media Institute, The
Association of Magazine Media, National Journal Group LLC, National Newspaper
Association, National Press Photographers Association, National Public Radio, The News
Leaders Association, News Media Alliance, The New York Times Company, North
Carolina Press Association, POLITICO LLC, Radio Television Digital News Association,
Society of Environmental Journalists, Society of Professional Journalists, Tribune
Publishing Company, Tully Center for Free Speech, Virginia Coalition for Open
Government, Virginia Press Association, and The Washington Post.

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On February 22, 2021, the Virginia General Assembly passed legislation abolishing
the death penalty in Virginia and converting the sentences of those on death row to life
imprisonment without parole. S.B. 1165ER, 161st Gen. Assemb., 1st Spec. Sess. (Va.
2021). Governor Ralph S. Northam signed the bill into law on March 24, 2021. In response
to this legislative action, Appellants have filed an unopposed suggestion of mootness and
motion to vacate the district court’s judgment and remand with instructions to dismiss the
action.
We conclude that Appellants’ request for vacatur and remand is well taken. “Article
III limits the jurisdiction of federal courts to cases and controversies.” Catawba
Riverkeeper Found. v. N.C. Dep’t of Transp., 843 F.3d 583, 588 (4th Cir. 2016). “[A]n
actual controversy must exist not only at the time the complaint is filed, but through all
stages of the litigation.” Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1975
(2016) (internal quotation marks omitted). “A case becomes moot, and thus deprives
federal courts of subject matter jurisdiction, when the issues presented are no longer ‘live’
or the parties lack a legally cognizable interest in the outcome.” Catawba Riverkeeper
Found., 843 F.3d at 588 (internal quotation marks omitted). “If an event occurs during the
pendency of an appeal that makes it impossible for a court to grant effective relief to a
prevailing party, then the appeal must be dismissed as moot.” Fleet Feet, Inc. v. NIKE,
Inc., 986 F.3d 458, 463 (4th Cir. 2021) (internal quotation marks omitted).
“The customary practice when a case is rendered moot on appeal is to vacate the
moot aspects of the lower court’s judgment” and remand with instructions to dismiss. SAS
Inst., Inc. v. World Programming Ltd., 874 F.3d 370, 390 (4th Cir. 2017) (internal quotation

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marks omitted); see Great W. Sugar Co. v. Nelson, 442 U.S. 92, 93 (1979). “The
established practice of vacatur is warranted, however, only where mootness has occurred
through happenstance, rather than through the voluntary action of the losing party.”
Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 162 (4th Cir. 2010) (internal
quotation marks omitted). This procedure acknowledges that “[a] party who seeks review
of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought
not in fairness be forced to acquiesce in the judgment.” U.S. Bancorp Mortg. Co. v. Bonner
Mall P’ship, 513 U.S. 18, 25 (1994). “In such circumstances, the equitable remedy of
vacatur clears the path for future relitigation of the issues between the parties.” Catawba
Riverkeeper Found., 843 F.3d at 589-90 (internal quotation marks omitted).
Here, Virginia’s newly enacted legislation has rendered Appellants’ action moot, as
courts can no longer grant effectual relief on Appellants’ First Amendment claim. As
mootness was purely the product of “happenstance—circumstances not attributable to the
parties”—vacatur of the district court’s order is an appropriate remedy. Arizonans for
Official English v. Arizona, 520 U.S. 43, 71 (1997) (internal quotation marks omitted).
Further, vacatur is both warranted and in the public interest, as allowing the district court’s
order to stand would effectively preserve an advisory opinion on constitutional questions,
one with conceivable implications beyond the narrow context of public access to
executions in Virginia. See Catawba Riverkeeper Found., 843 F.3d at 590-92; Taylor v.
Kellogg Brown & Root Servs., Inc., 658 F.3d 402, 412 (4th Cir. 2011).
Accordingly, we grant Appellants’ motion to vacate and remand, vacate the district
court’s judgment, and remand to the district court with instructions to dismiss the action.

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We dispense with oral argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would not aid the decisional
process.
VACATED AND REMANDED WITH INSTRUCTIONS

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