KENJOH OUTDOOR, LLC,
Plaintiff-Appellant,
v.
JACK MARCHBANKS, Director, Ohio Department of
Transportation; NATHAN FLING, Supervisor, Ohio
Department of Transportation,
Defendants-Appellees. |
No. 20-4026 |
Appeal from the United States District Court for the Southern District of Ohio at Dayton.
No. 3:19-cv-00328—Thomas M. Rose, District Judge.
Argued: October 19, 2021
Decided and Filed: January 11, 2022
Before: GILMAN, THAPAR, and NALBANDIAN, Circuit Judges.
_________________________
OPINION
_________________________
NALBANDIAN, Circuit Judge. This is a case about Ohio’s billboard regulations. In
Ohio, to place an advertising billboard on a highway, you must apply for a permit from the Ohio
Department of Transportation (ODOT). But under one of its regulations, known as the
compliance rule, ODOT will not process a permit application if the applicant has outstanding
fees, changes his billboard without prior approval from ODOT, or maintains an illegal
advertising billboard.
This controversy began when ODOT put Kenjoh’s billboard permits on hold under the
compliance rule, alleging that Kenjoh was maintaining an illegal billboard. In turn, Kenjoh sued
ODOT, asserting that the compliance rule is an unconstitutional prior restraint. It asked for a
permanent injunction and damages under 42 U.S.C. § 1983. The district court dismissed both
claims, and Kenjoh appealed. But while the case was pending on appeal, the Ohio legislature
amended a key definition in the relevant statute. This changes how the regulation applies. So
we VACATE and REMAND the injunction claim to the district court to consider the
constitutionality of the regulation given the amendment. But as to damages, we AFFIRM the
grant of qualified immunity despite the amendment. That’s because we look at the law as it
existed at the time of the official action. |