Case 3:20-cv-00403-HEH Document 17 Filed 07/24/20 Page 1 of 7 PageID# 71

IN THE UNITED STATES DISTRICT COURT

WILLIAM F. DAVIS,

Plaintiff,

Civil Action No. 3:20-cv-403-HEH

RALPH S. NORTHAM,

Defendant.

MEMORANDUM OPINION
(Denying Plaintiffs Motion for Preliminary Injunctive Relief as Moot and
Dismissing Plaintiffs Complaint)

This matter is before the Court on William F. Davis'{pro se "Plaintiff) Motion

for Emergency Injunction, which this Court construes as a request for a preliminary

injunction, filed on July 17, 2020(ECF No. 12). In his Amended Complaint, filed on

July 7, 2020(Am. Compl., ECF No. 10), Plaintiff seeks to enjoin the Governor of

Virginia, Ralph S. Northam ("Defendant"), from removing the statue of Robert E. Lee on

Monument Avenue in Richmond, Virginia. Plaintiff further seeks a federally mandated

directive for the statue to be cleaned.

Throughout the pendency ofPlaintiffs lawsuit, however, an injunction issued by

the Richmond City Circuit Court has prevented the removal of the Robert E. Lee statue.

See Gregory v. Northam, CL20-2441. Plaintiffs Motion therefore seeks preliminary

injunctive relief from this Court in the event that the current injunction is withdrawn by

the Richmond City Circuit Court following the hearing on Thursday, July 23, 2020, at
 Case 3:20-cv-00403-HEH Document 17 Filed 07/24/20 Page 2 of 7 PageID# 72

2:45 p.m. (Pl.'s Mot. at 1, ECF No. 12.) Thus, this Court ordered Defendant to respond

to Plaintiffs Motion by July 22, 2020, so that it could issue a timely ruling.

Article III ofthe Constitution limits the exercise ofjudicial power to "cases" and

"controversies." Summers v. Earth IslandInst., 555 U.S. 488,492-93 (2009)(Scalia, J.).

"This limitation 'is founded in concern about the proper—and properly limited—^role of

the courts in a democratic society.'" Id.(quoting Warth v. Seldin, 422 U.S. 490,498

(1975)). The doctrine of standing is an outgrowth ofthis concern. Id. at 493.

To establish standing, a plaintiff must show: an injury in fact that is concrete and

particularized and actual or imminent, not conjectural or hypothetical; the injury is fairly

traceable to the challenged action of the defendant; and it is likely, as opposed to merely

speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560-61 (1992). The latter two elements, traceability and

redressability, require such similar inquiries that they are often considered to be "two

sides of a causation coin." Dynalantic Corp. v. Dep't ofDefense, 115 F.3d 1012, 1017

(D.C. Cir. 1997). A plaintiff bears the burden of establishing that he has standing for

each type of relief sought. City ofLos Angeles v. Lyons, 461 U.S. 95, 105 (1983).

In addition, the Court acknowledges the liberal construction afforded to pro se

complaints. Later v. Harvey, 438 F.3d 404,413 n.3 (4th Cir. 2006). The Court,

however, need not attempt "to discern the unexpressed intent of the plaintiff." Id. Nor

does the requirement of liberal construction excuse a clear failure in the pleading to

allege a federally cognizable claim. Weller v. Dep't ofSoc. Servs., 901 F.2d 387(4th Cir.

1990). As the Fourth Circuit explained in Beaudett v. City ofHampton,"[tjhough [pro

se] litigants cannot, of course, be expected to frame legal issues with the clarity and

precision ideally evident in the work of those trained in law, neither can district courts be

required to conjure up and decide issues never fairly presented to them." 775 F.2d 1274,

1276 (4th Cir. 1985).

Plaintiff alleges 36 C.F.R. § 60.15 provides the grounds for his lawsuit, as it sets

forth the requirements for removing properties—that is, delisting properties—listed in the

National Register of Historic Places (the "National Register"). (Am. Compl.fl 4-5.)

Construing his Amended Complaint liberally as this Court must, it appears to the Court

that Plaintiffs claim arises under the National Historic Preservation Act of 1966 (the

"Act"), 54 U.S.C. § 300101 etseq.(as amended). Under this Act, historic property

meeting certain requirements may be designated for protection and preservation by virtue

of inclusion on the National Register. See §§ 300308, 300311, 300315(1).

Defendant's principal contention is that Plaintiff lacks standing to bring his

lawsuit. Defendant avers that Plaintiff fails to allege he will suffer any harm to his own

legal interests if the statue is removed. (Def.'s Mem. Opp'n at 4, ECF No. 16.) Although
Defendant is correct that the party invoking federal jurisdiction bears the burden of

establishing an "invasion of[his] legally protected interest," see Lujan, 504 U.S. at 560,

at least one federal court of appeals has interpreted this requirement to extend to any

"cognizable interest." See Sierra Club v. Jewell, 764 F.3d 1,6(D.C. Cir. 2014)

(involving a challenge to the delisting of a battlefield from the National Register).

In Jewell, the court found that a plaintiff would suffer an injury in fact if the

property listed on the National Register—property to which the plaintiff had no legal
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entitlement—^were delisted and physically altered such that the plaintiff could no longer

observe, study, or appreciate the property. See id. at 5("The Supreme Court[of the

United States] has recognized that harm to 'the mere esthetic interests ofthe plaintiff...

will suffice' to establish a concrete and particularized injury."(quoting Summers,555

U.S. at 494). Plaintiffs claim—with respect to the statue of Robert E. Lee on Monument

Avenue—^bears enough similarity to make this a close question. However, assuming

without deciding that Plaintiff has satisfied the first element of standing, the Court finds

that Plaintiff has nevertheless failed to satisfy the second and third elements ofthe

standing inquiry.

Plaintiff must also show that his injury will be "fairly traceable" to the delisting of

the Robert E. Lee statue from the National Register, as well as that "it is likely, as

opposed to merely speculative, that the injury will be redressed by a favorable decision."

See Friends ofthe Earth, Inc. v. Laidlaw Envtl Servs., Inc., 120 S. Ct. 693, 180-81

(2000). The statue of Robert E. Lee was placed on the National Register on January 5,

2007, and thus enjoys a protected status. See National Archives Catalog, Virginia SF

Lee, Robert E., Monument(July 24, 2020), https://catalog.archives.gov/id/41683201. As

Plaintiff contends, in order to remove property from the National Register, one of the

following requirements must be met:

(1) the property no longer meets the criteria for listing due to loss or
destruction;(2)additional information shows that the property does not meet
the eligibility criteria; (3) errors in professional judgment were made
regarding eligibility; or (4) there was prejudicial procedural error in the
nomination or listing process.
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See Moody Hill Farms Ltd. P'ship v. United States Dep 't ofthe Interior, Nat7Park Serv.,

205 F.3d 554, 560(2d Cir. 1999)(quoting 36 C.F.R. § 60.15).

Canvassing the Act and its regulations, though, it appears to this Court that simply

listing a property on the National Register does not necessarily prohibit the property

owner from making physical changes to the property, the latter being the relief Plaintiff

seeks. See 36 C.F.R. § 60.2 ("Listing of private property on the National Register does

not prohibit under Federal law or regulation any actions which may otherwise be taken by

the property owner with respect to the property."). But see 36 C.F.R. § 60.14(b)(1)

("Properties listed in the National Register should be moved only when there is no

feasible alternative for preservation. When a property is moved, every effort should be

made to reestablish its historic orientation, immediate setting, and general

environment."). The exception to this paradigm arises where the property is involved in a

project that receives federal funding, licensing, or permitting—^which Plaintiff has not

alleged here. See 54 U.S.C. § 306108.

Apart from citing 36 C.F.R. § 60.15 itself. Plaintiff has also failed to direct this

Court to any further authority, such as a state or local law, that would afford additional

protections to properties listed in the National Register.' See, e.g., Jewell, 764 F.3d at 8

'Although—at the time ofthe filing of Plaintiffs lawsuit—various Virginia and local laws
prohibited the removal of certain confederate statues throughout the state, new legislation was
enacted by the Virginia General Assembly this year, and that legislation became effective on
July 1, 2020, permitting such removal. See S. Res. 183, 2020 Gen. Assemb., Reg. Sess.(Va.
2020)(codified at Va. Code Ann. § 15.2-1812.1); H. Res. 1537, 2020 Gen. Assemb., Reg. Sess.
(Va. 2020)(codified at Va. Code Ann. § 15.2-1812.1); see also Va. Code Ann. § 15.2-1812
(repealed 2020). However, none of these laws specifically provided protection to these
monuments by virtue oftheir listings in the National Register. As such,these laws are
immaterial to the Court's determination ofthe second and third elements.
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("[E]ven if surface mining could continue upon a relisting of the

Battlefield, West Virginia law affords additional protections to places listed in the

Register."(citing W. Va. Code R. § 38-2-3-17,c (revised 2018)). Therefore, not only is

delisting the statue causally distinct from Defendant's alleged conduct, but also, even if

Plaintiff received a favorable decision from this Court—thus preventing the statue from

being delisted—it is not clear that such a decision would prevent Defendant from

physically removing the statue from Monument Avenue. Thus, because Plaintiff bears

the burden of proof and persuasion as to the existence of standing, see Lujan, 504 U.S. at

561, the Court finds that Plaintiff has failed to establish the requisite elements to confer

standing in this case.^

Even if Plaintiff had standing to bring this lawsuit. Plaintiff has also failed to show

that the Act provides a private right of action. See Campbell ex rel Equity Units Holders

V. Am. Int'l Grp., Inc., 86 F. Supp. 3d 464, 471 (E.D. Va. 2015)("[Plaintiff] must show

that Congress has displayed 'an intent to create not just a private right but also a private

remedy.'"{qwoimg Alexander v. Sandoval, 532 U.S. 275,288-91 (2001))), aff'd, 616 F.

App'x 74(4th Cir. 2015), cert, denied, 136 S. Ct. 1467(2016). Other challenges of this

sort have arisen pursuant to the Administrative Procedure Act("APA"),5 U.S.C. § 706 e/

^ Although Plaintiff expressly cites only 36 C.F.R. § 60.15 in his Amended Complaint,the Court
acknowledges that Plaintiffs intent is clear: Plaintiff seeks to enjoin Governor Northam from
physically removing the Robert E. Lee statue from its place on Monument Avenue. Contra
Laber,438 F.3d at 413 n.3 ("[Ojur task is not to discem the unexpressed intent ofthe plaintiff.").
Nevertheless, this Court believes it too much to construe Plaintiffs citation of 36 C.F.R.
§ 60.15—indeed,the entirety ofthe grounds alleged by Plaintiff permitting this Court to exercise
jurisdiction—as a mere scrivener's error, and to substitute 36 C.F.R. § 60.14 in its place.
However, even if this Court did so and doing so was sufficient to confer standing upon Plaintiff,
the fact remains that Plaintiffs Amended Complaint contains other fatal deficiencies.
 Case 3:20-cv-00403-HEH Document 17 Filed 07/24/20 Page 7 of 7 PageID# 77

seq.—not solely under the National Historic Preservation Act—and have challenged

agency action. See, e.g., Monumental Task Comm., Inc. v. Foxx, 157 F. Supp. 3d 573,

585 (E.D. La. 2016)(proceeding pursuant to the A?A),aff'd sub. nom.. Monumental

Task Comm., Inc. v. Chao,678 F. App'x 250(5th Cir. 2017)(mem.); Sierra Club v.

Salazar, 894 F. Supp. 2d 97, 101 (D.D.C. 2012)(proceeding pursuant to the APA),rev'd

sub. nom. on other grounds. Sierra Club v. Jewell, 764 F.3d 1 (D.C. Cir. 2014); San

Carlos Apache Tribe v. United States, 417 F.3d 1091, 1099(9th Cir. 2005)(finding that

the Act contains no private right of action); Pye v. United States, 269 F.3d 459,464(4th

Cir. 2001)(proceeding pursuant to the APA). Although the Court is mindful that

Plaintiff is proceeding pro se. Plaintiffs failure to bring this claim under the APA is not

an error this Court can overlook. See Beaudett, 775 F.2d at 1276 ("[DJistrict courts

[cannot] be required to conjure up and decide issues never fairly presented to them.").

Accordingly, as the Court finds that the Act does not provide a private right of

action, the matter cannot proceed in its present form. As a result. Plaintiffs Motion will

be denied as moot(ECF No. 12), and Plaintiffs Amended Complaint will be dismissed

(ECFNo. 10).

An appropriate Order will accompany this Memorandmjii^'pinion.

Henry E. Hudson
Senior United States District Judge
Date: Tulu 2i>'XO
Richmond, hiA