UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-1151

BRUCE & TANYA & ASSOCIATES, INC.,

Plaintiff - Appellant,

v.

BOARD OF SUPERVISORS OF FAIRFAX COUNTY, VIRGINIA; FAIRFAX COUNTY, VIRGINIA; STEPHEN BRICH, as Commissioner of Highways for the Commonwealth of Virginia,

Defendants - Appellees,

and

JACK WEYANT, as Director of the Department of Code Compliance,

Defendant.

No. 19-1153

BRUCE & TANYA & ASSOCIATES, INC.,

Plaintiff - Appellee,

v.

BOARD OF SUPERVISORS OF FAIRFAX COUNTY, VIRGINIA; FAIRFAX COUNTY VIRGINIA;

Defendants - Appellants,

and JACK WEYANT, as Director of the Department of Code Compliance; STEPHEN BRICH, as Commissioner of Highways for the Commonwealth of Virginia,

Defendants.

Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:17-cv-01155-LMB-TCB)

Submitted: March 27, 2020 Decided: May 10, 2021

Before AGEE, THACKER, and RUSHING, Circuit Judges.

Affirmed by unpublished opinion. Judge Rushing wrote the opinion, in which Judge Agee and Judge Thacker joined.

Jesse R. Binnall, HARVEY & BINNALL, PLLC, Alexandria, Virginia, for Appellant/Cross-Appellee. Mark R. Herring, Attorney General, Donald D. Anderson, Deputy Attorney General, Toby J. Heytens, Solicitor General, Matthew R. McGuire, Principal Deputy Solicitor General, Michelle S. Kallen, Deputy Solicitor General, Brittany M. Jones, John Marshall Fellow, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for State Appellee. Elizabeth D. Teare, County Attorney, Sarah A. Hensley, Assistant County Attorney, OFFICE OF THE COUNTY ATTORNEY, Fairfax, Virginia, for Appellees/Cross-Appellants.

Unpublished opinions are not binding precedent in this circuit.

2 RUSHING, Circuit Judge:

Virginia has long regulated outdoor advertising visible from its highways to

promote the safety of travelers and the aesthetics of its roadways. This case concerns two

provisions of Virginia’s statutory scheme,

, which forbids signs

within the limits of any highway, and

, which lists exceptions

to various signage regulations. Plaintiff Bruce & Tanya & Associates, Inc. (BTA), a real

estate firm that uses roadside signs to advertise, contends that Section 1224, as modified

by Section 1204, is an unlawful prior restraint, an impermissible content-based restriction

on speech, and unconstitutionally vague. BTA further alleges that Section 1224 has been

selectively enforced against it.

The defendants—Fairfax County and its Board of Supervisors (collectively, the

County) and Stephen Brich, the Commissioner of Highways for the Commonwealth of

Virginia—are State and local government actors with authority to enforce Section 1224.

The district court granted judgment for the defendants on some claims and dismissed the

remainder. After dismissal, the County sought attorney’s fees from BTA, which the district

court denied. BTA appealed from the court’s final judgment, and the County cross-

appealed the denial of fees. For the reasons that follow, we affirm the district court’s

judgment in both cases.

I.

A.

Virginia regulates outdoor advertising “in areas adjacent to the rights-of-way of the

highways within the Commonwealth” according to a detailed scheme of interconnected

3 regulations.

(A); see

§§ 33.2-1200–33.2-1234. Different

statutory provisions apply depending on the type of advertising (for example, billboards or

on-premises signs); where the advertising is located (for example, within a municipality or

not); and whether the advertising is visible from particular roads (for example, an Interstate

System, National Highway System, or federal-aid primary highway), among other

distinctions. Some signs are absolutely forbidden—such as an advertisement prominently

displaying the word “stop” or “danger,” id. § 33.2-1216(3)—while others are allowed with

a permit, see, e.g., id. § 33.2-1208.

Section 1224 forbids “[s]igns or advertisements placed within the limits of the

highway” as “a public and private nuisance.” Id. § 33.2-1224. Any person posting a sign

or advertisement within the limits of any highway is subject to a $100 civil penalty per

occurrence. The Commissioner or his representative also may seek to enjoin a recurring

violator. Section 1224 does not apply to signs regulated under other provisions of the

statutory scheme.

Section 1204 exempts certain categories of signs and advertisements from some, but

not all, of the outdoor advertising regulations. In 2018, Virginia amended this section to

explicitly state that six of the listed categories of signs are exempt from Section 1224. See

id. § 33.2-1204(5), (6), (12), (13), (15), (19).

B.

BTA operates in a five square mile area of Fairfax County. As part of its business,

BTA posts signs advertising its clients’ properties, often placing those signs within the

limits of the highway. In April 2012, the Virginia Department of Transportation notified

4 BTA that it was violating Section 1224. After further warnings, the Department of

Transportation began fining BTA for its continued violations. Between April 2012 and

March 2013, the Department of Transportation fined BTA on at least eleven occasions.

In March 2013, Virginia’s Commissioner of Highways signed a cooperative

agreement with the Fairfax County Board of Supervisors authorizing the latter to enforce

Section 1224. Pursuant to that Agreement, the Board directed the County to establish a

sign removal program and begin enforcing Section 1224 on a designated subset of roads in

Fairfax County. For the first three years of the program, the County removed prohibited

signs but issued no fines. In 2016, the County adopted the Department of Code Compliance

Illegal Right-of-Way Signage Inspection and Enforcement Program Policy (DCC Policy).

In accord with the DCC Policy, the County began sending warning letters to repeat

offenders and, if violations persisted, issuing citations fining those determined to be

“egregious violators.”

BTA was an egregious violator of Section 1224. From March to October 2016, the

County fined BTA 89 times, and from May to October of the same year BTA received

approximately 21% of all fines issued. In December 2016, the Board sued BTA in Virginia

state court for payment of outstanding fines and exercised its delegated authority under

Section 1224 to seek an injunction barring BTA from further violations. BTA responded

with a counterclaim raising constitutional defenses but subsequently dismissed its

counterclaim and initiated this federal suit. 1

1 The state court has stayed its proceedings during the pendency of this action.

5 C.

BTA sued the County and Virginia’s Commissioner of Highways in federal court,

seeking declaratory and injunctive relief as well as damages and fees pursuant to

and 1988. In April 2018, while this suit was pending in the district court, the

Virginia legislature amended Section 1204 to clarify that six categories of signs are exempt

from Section 1224. The County and the Commissioner separately moved to dismiss, and

the district court granted their motions. The court held that Section 1224—considered with

the exceptions in Section 1204 as amended in 2018—was not an unconstitutional

restriction on speech and was not unconstitutionally vague. 2 Regarding pre-amendment

enforcement, the court determined that the County was susceptible to damages under

Section 1983 for its policy of enforcing Section 1224 but that dismissal was warranted

because the pre-amendment statutory scheme could be construed to be constitutional. The

court dismissed BTA’s prior restraint claim as unripe and dismissed its selective

enforcement claim for failure to adequately plead discriminatory intent. The County

subsequently sought an award of attorney’s fees under

, which the district

court denied.

BTA and the County each appealed to this Court. We review de novo orders of

dismissal pursuant to Fed. R. Civ. P. 12(b)(1) and (6) and orders granting summary

2 Finding no genuine dispute of material fact on these issues, the district court granted judgment for the defendants and denied BTA’s motion for summary judgment and injunctive relief. BTA was not denied a reasonable opportunity to present all pertinent material, so its procedural quibble with this ruling fails. See Fed. R. Civ. P. 12(d); Herbert v. Saffell,

(4th Cir. 1989). 6 judgment. See Garnett v. Remedi Seniorcare of Va., LLC,

(4th Cir.

2018) (Rule 12(b)(6)); Demetres v. E.W. Const., Inc.,

(4th Cir. 2015)

(Rule 12(b)(1)); Ballengee v. CBS Broad., Inc.,

(2020) (summary

judgment). We review for abuse of discretion a district court’s decision to grant or deny

attorney’s fees under Section 1988. Mercer v. Duke Univ.,

(4th Cir.

2005).

II.

Before we consider the merits of BTA’s constitutional challenges we must address

two threshold questions the defendants raised below and reiterate on appeal: standing and

ripeness. Both are jurisdictional. See Sansotta v. Town of Nags Head,

(4th Cir. 2013); Pye v. United States,

(4th Cir. 2001). Accordingly, our

obligation of ensuring jurisdiction requires us to first examine those preliminary questions.

See Bender v. Williamsport Area Sch. Dist.,

(1986).

A.

Standing to sue is a doctrine rooted in the Constitution’s limitation of federal-court

jurisdiction to actual cases and controversies. See U.S. Const. art. III, § 2; Raines v. Byrd,

(1997). To establish so-called Article III standing, a plaintiff must show

that he has “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged

conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial

decision.” Spokeo, Inc. v. Robins,

(2016). These requirements

ensure that a plaintiff invoking the jurisdiction of a federal court can show “a personal stake

7 in the outcome of the controversy.” Gill v. Whitford,

(2018) (internal

quotation marks omitted).

The defendants primarily argue that BTA cannot show that a favorable decision

would redress its injury because, even if the present challenge to Section 1224 were to

succeed, the Commissioner could enforce other Virginia signage statutes that allegedly

forbid BTA from posting its signs where it currently does. 3 We disagree. BTA has

standing to challenge Section 1224 because the Commissioner and the County have

actually enforced that statute against it, citing Section 1224 as the only basis for removing

BTA’s signs and levying fines. The other provisions which the Commissioner claims could

be enforced against BTA have not been. The hypothetical possibility that the

Commissioner could choose in his discretion to enforce other regulations to prevent BTA

ultimately from posting its signs does not render the claims advanced in this case, regarding

the only regulation actually enforced against BTA, unredressable.

These facts distinguish the cases on which the Commissioner relies. In the sign-

ordinance cases the Commissioner cites, favorable judicial decisions could not redress the

plaintiffs’ injuries because the plaintiffs challenged only some of the grounds on which the

cities denied their permit applications, leaving other valid grounds for the denials

unchallenged. See Covenant Media of S.C., LLC v. City of North Charleston,

The County is empowered to enforce only Section 1224; the Agreement does not delegate authority to the County to enforce any other state signage statutes. Accordingly, the County’s standing argument depends on the Commissioner’s ability to enforce other statutes independent of any restraint upon the County.

8 421, 430 (4th Cir. 2007); Advantage Media, LLC v. City of Eden Prairie,

,

797–798, 801 (8th Cir. 2006). The plaintiff’s claim in Doe v. Virginia Department of State

Police failed the redressability requirement because, even if the court ordered the defendant

to implement the procedures the plaintiff sought or to grant her entry to the relevant

property, under the state statutory scheme she would still need permission from a state

court before she could enter the property, rendering it “purely speculative” whether any

action by this Court would redress her injury.

(4th Cir. 2013). The Doe

plaintiff’s claims also lacked traceability and redressability because she had not attempted

the lawful means of entering the property.

. Therefore, it was speculative whether

she would be denied and whether action by this Court would have any effect on her ability

to enter the property.

That situation is quite unlike this case, where BTA posted its signs and the

Commissioner and the County removed them, citing Section 1224 as the only ground for

removal. On appeal the Commissioner notes that signs require permits, see

, but no one removed BTA’s signs for lack of a permit, nor does anyone argue

that the Commissioner could grant a permit in disregard of Section 1224’s prohibition on

signs within the limits of any highway.

There can be little doubt that were BTA to prevail, the court could award relief that

would alleviate the particular harm it has suffered: enforcement of Section 1224 to remove

its signs and impose penalties. For purposes of assessing the third prong of the standing

inquiry, that is all that is required.

9 B.

Having found that BTA has standing, we turn to the ripeness of its claims. The

“basic rationale” of the ripeness doctrine is “to prevent the courts, through avoidance of

premature adjudication, from entangling themselves in abstract disagreements.” Abbott

Labs. v. Gardner,

(1967); see also Nat’l Park Hosp. Ass’n v. Dep’t of

Interior,

(2003) (noting the doctrine’s constitutional and prudential

roots). “A claim is not ripe for adjudication if it rests upon contingent future events that

may not occur as anticipated, or indeed may not occur at all.” Texas v. United States,

(1998) (internal quotation marks omitted).

We have little difficulty rejecting the Commissioner’s argument that BTA’s claims

are unripe because it has not availed itself of the permitting and licensure provisions in

Virginia law. See

, 1208, 1216(7). Those provisions do not

impose an exhaustion requirement, and their hypothetical availability is tangential to

whether BTA’s claims regarding the actual enforcement of Section 1224 against it are

“appropriate for judicial resolution at this time.” Abbott Labs.,

. The

defendants’ actions enforcing Section 1224 by removing BTA’s signs and imposing fines

are “final and not dependent on future uncertainties” that would hamper our review. Miller

v. Brown,

(4th Cir. 2006).

There is one exception. The district court correctly found BTA’s prior restraint

claim unripe because it is predicated on an injunction that has not been issued. The Board

sued BTA in Virginia state court pursuant to Section 1224’s authorization to “enjoin any

recurring violator,” which BTA alleges is an unconstitutional prior restraint on speech. A

10 prior restraint is a legal order forbidding speech “issued in advance of the time that [the

speech will] occur.” Alexander v. United States,

(1993) (internal

quotation marks omitted). While “[t]emporary restraining orders and permanent

injunctions . . . are classic examples of prior restraints,”

until an order forbidding

speech issues, no such restraint has yet been imposed. Because the state court has not

awarded the Board the injunction it seeks (and the proceedings have been stayed pending

resolution of this action), BTA’s prior restraint claim “rests upon contingent future events

that may not occur as anticipated, or indeed may not occur at all.” Texas,

(internal quotation marks omitted); see also Woodall v. Reno,

(4th Cir.

1995) (“[W]e will not assume that a court would issue an injunction in violation of the

well-established prior restraint doctrine.”). Such a claim is not ripe for adjudication.

III.

The focus of BTA’s suit is its request that the Commissioner and his delegees be

prospectively enjoined from enforcing Section 1224, which it contends is constitutionally

infirm. See Ex parte Young,

(1908) (permitting injunctive relief against a

state officer to restrain violations of federal law). BTA argues that Section 1224 violates

its First Amendment right to freedom of speech because it is a content-based restriction on

speech that is not narrowly tailored to serve a compelling governmental interest. It also

argues that Section 1224 is unconstitutionally vague. For the reasons explained below,

both of BTA’s arguments fall short.

11 A.

The First Amendment, made applicable to the States (and local governments vested

with state authority) by the Fourteenth Amendment, prohibits enactments that abridge the

freedom of speech. Reed v. Town of Gilbert,

(2015). “Content-based

laws—those that target speech based on its communicative content—are presumptively

unconstitutional and may be justified only if the government proves that they are narrowly

tailored to serve compelling state interests.”

Laws that are content neutral are “subject

to a lower level of scrutiny.”

.

BTA does not allege that Section 1224 is unconstitutional when considered in

isolation. Rather, BTA contends that Section 1224 becomes a content-based restriction on

speech when the exceptions in Section 1204 apply to limit its scope. After the 2018

amendment, Section 1204 exempts six categories of signs from Section 1224’s general

prohibition on signs within the limits of the highway. See

(5),

(6), (12), (13), (15), (19). Five relate exclusively to government speech, as BTA admits,

and therefore pose no First Amendment problem.

§ 33.2-1204(5), (6), (12), (13), (15).

“The Free Speech Clause restricts government regulation of private speech; it does not

regulate government speech.” Pleasant Grove City v. Summum,

(2009);

see also Johanns v. Livestock Mktg. Ass’n,

(2005) (“[T]he Government’s

own speech . . . is exempt from First Amendment scrutiny.”). Thus, the government is

“entitled to say what it wishes, and to select the views that it wants to express.” Summum,

(internal quotation marks omitted). While most of the five exemptions

unquestionably draw distinctions based on the message conveyed—for example, warning

12 signs, signs relating to Red Cross emergency stations, and historical markers—the First

Amendment is not offended by this preferential treatment because the government is the

source of the message. See Reed,

(Alito, J., concurring) (“[G]overnment

entities may . . . erect their own signs consistent with the principles that allow

governmental speech,” including “all manner of signs to promote safety, as well as

directional signs and signs pointing out historic sites and scenic spots.”).

The only remaining exception to Section 1224 in Section 1204 exempts “signs

containing advertisements or notices that have been authorized by a county and that are

securely affixed to a public transit passenger shelter that is owned by that county.”

(19). This exemption is content neutral and therefore not subject

to strict scrutiny. See Turner Broad. Sys., Inc. v. FCC,

(1994) (“[L]aws

that confer benefits or impose burdens on speech without reference to the ideas or views

expressed are in most instances content neutral.”). BTA concedes that this exception is

facially neutral and, although it notes the discretion vested in counties to authorize transit

shelter advertisements, does not make any allegation about the manner in which the County

exercises its discretion.

Determining that a restriction is content neutral does not end the First Amendment

inquiry, as such regulations are still subject to “an intermediate level of scrutiny.” Turner,

. Nevertheless, a wide body of jurisprudence upholds content-neutral “time,

place, and manner” restrictions that are “sufficiently justified and narrowly enough drawn.”

Wall Distribs., Inc. v. City of Newport News,

, 1168 (4th Cir. 1986). “[E]ven

in a public forum”—where First Amendment interests are at their zenith—“the government

13 may impose reasonable restrictions on the time, place, or manner of protected speech,

provided the restrictions ‘are justified without reference to the content of the regulated

speech, that they are narrowly tailored to serve a significant governmental interest, and that

they leave open ample alternative channels for communication of the information.’” Ward

v. Rock Against Racism,

(1989) (quoting Clark v. Cmty. for Creative

Non–Violence,

(1984)).

Section 1224’s ban on signs within the limits of any highway, as modified by the

transit shelter exception in Section 1204(19), satisfies the test for content-neutral time,

place, and manner restrictions. 4 The proffered governmental interests—ensuring driver

safety and preserving aesthetic considerations on the highways—are undoubtedly

significant under our precedent. See Arlington Cnty. Republican Comm. v. Arlington

County,

, 594 (4th Cir. 1993) (“promot[ing] aesthetics and traffic safety” are

“substantial” government interests underlying regulation of temporary signage); see also

Ross v. Early,

(4th Cir. 2014) (“maintaining the safety, order, and

accessibility of its streets and sidewalks” is a substantial governmental interest justifying

leafletting restriction (internal quotation marks omitted)); Am. Legion Post 7 v. City of

Durham,

(4th Cir. 2001) (“[A] community’s interest in preserving its

aesthetic character is indeed a ‘substantial interest.’”). The prohibition on private signage

within the limits of any highway unless securely affixed to a county-owned transit shelter

4 Because the statutes satisfy the more speech-protective standard, we need not decide how to characterize areas within the limits of the highway for purposes of First Amendment forum analysis. 14 promotes these interests by “keep[ing] the highways free of visual clutter, distracting

images, and physical hazards” and does so “more effectively than plausible alternatives.”

Bruce & Tanya & Assocs., Inc. v. Bd. of Supervisors of Fairfax Cnty.,

(E.D. Va. 2018). The Commonwealth is not required to choose the “least restrictive

or least intrusive means” of accomplishing its purpose but need only show, as it has here,

that its regulation “promotes a substantial government interest that would be achieved less

effectively absent the regulation.” Ward, 491 U.S. at 798–799 (internal quotation marks

omitted).

Finally, Sections 1224 and 1204 “leave open ample alternative channels” for BTA

to communicate its message. Id. at 802. As the district court observed, the statutes govern

only BTA’s ability to post signs on government-owned land within the limits of a highway.

They do not restrict BTA from “post[ing] advertisements on private land or in various

forms of media,” applying to display signs on public transit shelters, or seeking a permit to

display advertisements “visible from” a highway. Bruce & Tanya,

(citing

(19), 33.2-1205, 33.2-1208). BTA questions whether

these options would be satisfactory alternatives to placing signs within the limits of the

highway, but the available alternatives “need not be the speaker’s first or best choice or

provide the same audience or impact for the speech.” Ross,

(internal

quotation marks and alterations omitted). We agree with the district court that, while the

statutes may impact BTA’s preferred method of advertising, they leave open many

reasonable means by which BTA can advertise its properties. As a result, Section 1224

does not unconstitutionally restrict BTA’s speech.

15 B.

BTA also argues that Section 1224 is unconstitutionally vague because it does not

define the phrase “within the limits of any highway.” Absent a definition of this critical

phrase, BTA contends, no one “reviewing th[e] statute could be certain what conduct is

proscribed.” BTA Opening Br. at 22.

“A fundamental principle in our legal system is that laws which regulate persons or

entities must give fair notice of conduct that is forbidden or required.” FCC v. Fox

Television Stations, Inc.,

(2012). This precept is usually traced to our

Constitution’s guarantee of due process; when speech is regulated, the First Amendment

buttresses that requirement “to ensure that ambiguity does not chill protected speech.”

at 253–254; see also Reno v. Am. Civil Liberties Union,

, 871–872 (1997).

Yet due process demands a measure of clarity, not exactitude. Thus, a statute is too vague

to be enforced consistent with due process only if it “fails to provide a person of ordinary

intelligence fair notice of what is prohibited, or is so standardless that it authorizes or

encourages seriously discriminatory enforcement.” Fox Television,

(internal quotation marks omitted).

Section 1224 clears this standard. At the outset, we note that the Code defines

“highway.” See

(B). And BTA acknowledges that the

Commonwealth uses the phrase “limits of the highway” to refer to the right-of-way upon

which the highway sits. See J.A. 32 (Agreement authorizing the Board “to . . . remov[e]

any signs or advertising located within the rights-of-way, in violation of [Section 1224]”).

Indeed, BTA understands the phrase to carry this meaning, as its complaint alleges that

16 “many” of its signs are “posted immediately adjacent to highways and are often within the

territorial limits of such highways.” J.A. 16. BTA nevertheless contends that the phrase

retains some ambiguity.

We agree with the district court that even if the phrase leaves room for debate about

precisely how close a sign may be to the edge of the roadway, it is “not rendered

unconstitutional simply because the legislature used descriptive rather than mathematical

terms.” Bruce & Tanya,

. The Supreme Court on more than one

occasion has rejected vagueness challenges against enactments employing words or

phrases at least as imprecise as “within the limits of any highway,” if not more so. See

Grayned v. City of Rockford,

(1972) (rejecting vagueness challenge to

ordinance that prohibited activity “adjacent to” a school); Cox v. Louisiana,

(1965) (holding that a statute criminalizing demonstrations “in or near” a courthouse

was not unconstitutionally vague). As the district court correctly concluded, “an ‘ordinary

person exercising ordinary common sense can sufficiently understand’ the phrase,”

particularly given the context in which it is used and the harm Section 1224 is designed to

mitigate. Bruce & Tanya,

(quoting Wag More Dogs, LLC v. Cozart,

, 371–372 (4th Cir. 2012)). “[P]erfect clarity and precise guidance have never

been required even of regulations that restrict expressive activity.” Ward,

.

For these reasons, BTA’s vagueness challenge fails.

IV.

We turn now to the claims BTA advances solely against the County. First, BTA

seeks to hold the County liable in damages for the alleged unconstitutionality of Section

17 1224 as modified by the pre-amendment version of Section 1204. Second, BTA contends

that the County selectively enforced Section 1224 in violation of the Equal Protection

Clause. The district court dismissed both claims. Before addressing either, we must

examine the statutory vehicle by which BTA has advanced its claims,

.

A.

Section 1983 creates a remedial cause of action against any “person” acting “under

color of any statute, ordinance, regulation, custom, or usage, of any State” who deprives

another of “any rights, privileges, or immunities secured by the Constitution and laws.”

. “Through [Section] 1983, Congress sought to give a remedy to parties

deprived of constitutional rights, privileges and immunities by an official’s abuse of his

position.” Hafer v. Melo,

(1991) (internal quotation marks omitted).

The Supreme Court has held that “municipalities and other local government units

[are] included among those persons to whom [Section] 1983 applies.” Monell v. Dep’t of

Soc. Servs.,

(1978). Under the doctrine announced in Monell, a local

government entity can be sued under Section 1983 if “the action that is alleged to be

unconstitutional implements or executes a policy statement, ordinance, regulation, or

decision officially adopted and promulgated by that body’s officers.”

A local

governing body “cannot be held liable solely because it employs a tortfeasor”; instead, the

constitutional harm must be the direct result of “action pursuant to official municipal policy

of some nature.”

(emphasis omitted); see also Pembaur v. City of Cincinnati,

(1986) (“[R]ecovery from a municipality is limited to . . . acts which the

municipality has officially sanctioned or ordered.”). This “official policy requirement” is

18 intended to “make clear that municipal liability is limited to action for which the

municipality is actually responsible.” Pembaur,

. Thus, “municipal

liability under [Section] 1983 attaches where—and only where—a deliberate choice to

follow a course of action is made from among various alternatives by city policymakers.”

City of Canton v. Harris,

(1989) (internal quotation marks omitted).

Here, the alleged unconstitutional acts were without question undertaken pursuant

to a formal directive from the Board: after entering into the Agreement with the

Commissioner, the Board ordered the County to adopt an enforcement program, which

ultimately took the form of the DCC Policy. But the County contends that it cannot be

held responsible for the enforcement program in a Section 1983 claim because the program

merely enforces state law. By implementing its policy, the County argues, it has acted as

an agent of the Commissioner, taking actions pursuant to a statutory mandate over which

it lacks the degree of control necessary for Monell liability.

We have not definitively addressed whether Monell liability can be predicated on a

local government’s policy of enforcing state law. 5 The majority of our sister circuits to

consider the question have suggested that a local government can be subjected to Monell

liability if it makes an independent choice to enforce or follow parameters set by state law,

rather than being obliged to do so. See Vives v. City of New York,

(2d

5 In Bockes v. Fields, we held that a county Board of Social Services could not be subject to Monell liability for a firing that violated the Fourteenth Amendment because it acted pursuant to criteria and procedures required by the State Board of Social Services.

(4th Cir. 1993). We concluded that the county Board had not exercised its own policymaking authority when it applied standards mandated by the State Board in firing the plaintiff.

19 Cir. 2008); Cooper v. Dillon,

, 1222–1223 (11th Cir. 2005); Garner v.

Memphis Police Dep’t,

(6th Cir. 1993); Evers v. Custer County,

, 1203–1204 (9th Cir. 1984). But see Surplus Store & Exch., Inc. v. City of Delphi,

, 791–792 (7th Cir. 1991).

We find Vives instructive. There the City of New York chose to enforce a New

York criminal statute that was later found to infringe the First Amendment.

. City police officers arrested and held Vives for allegedly violating the state statute,

but the district attorney declined to prosecute.

at 348–349. Vives sued the City under

Section 1983 for violating his First Amendment speech rights. The City argued it was not

subject to Monell liability because a “municipality does not implement or execute a policy

officially adopted and promulgated by its officers when it merely enforces the Penal Law

of the State that created it.”

.

The Second Circuit rejected the City’s maximal position. The court began from the

premise that “[t]he word ‘policy’ generally implies a course of action consciously chosen

from among various alternatives.”

(quoting Oklahoma City v. Tuttle,

(1985)); see also Spell v. McDaniel,

(4th Cir. 1987). The Vives court

reasoned that “[f]reedom to act is inherent in the concept of ‘choice,’” and a state law

“mandating enforcement” by local government officials cannot be considered the product

of a conscious choice. Vives,

. Local governments therefore “cannot be

liable under Monell in th[at] circumstance.”

By contrast, if a local government entity

“decides to enforce a statute that it is authorized, but not required, to enforce, it may have

created a . . . policy” for which it can be liable.

In sum, whether a local government

20 entity’s policy of enforcing a state statute renders it susceptible to Monell liability turns on

“whether a municipal policymaker has made a meaningful and conscious choice that

caused a constitutional injury.”

.

B.

Having considered the parameters of Section 1983, we turn to BTA’s claim that the

County is liable for enforcing an unconstitutional state statute. BTA argues that Section

1224 violates the First Amendment not by itself but by virtue of exceptions to its coverage

detailed in Section 1204. According to BTA, before the Virginia legislature amended

Section 1204 in 2018, that statute excepted large swaths of signage from Section 1224

based on their content. BTA seeks to hold the County liable in damages for enforcing this

allegedly unconstitutional statutory couplet.

We must first identify the relevant policy. See Harris,

(“[O]ur first

inquiry in any case alleging municipal liability under [Section] 1983 is the question

whether there is a direct causal link between a municipal policy or custom and the alleged

constitutional deprivation.”). The relevant County policy consists of the Agreement

between the Commissioner and the Board and the DCC Policy created pursuant to that

Agreement. The Agreement states that the Commissioner “desires the Board’s assistance”

in removing signs from the highways in Fairfax County and that the Board, after a public

hearing on the matter, “expressed its desire and agreement” to enforce Section 1224 and

collect the fines provided therein. J.A. 32. Accordingly, in the Agreement the

Commissioner, pursuant to

, “authorize[d] the Board” to act as

21 his agent “for the purpose of removing any signs or advertising located within the rights-

of-way in violation of [Section 1224]” and collecting the related fines. J.A. 32.

The County can be held liable for its policy of enforcing Section 1224 because it

consciously chose to enforce that particular state statute after requisite deliberation. See

Vives,

. Section 1225 authorizes—but does not require—Fairfax County

to enter into a cooperative agreement with the Commissioner to enforce Section 1224. See

(A). Likewise, the Agreement authorizes but does not mandate

the County to enforce Section 1224 and sets parameters on its enforcement. Fairfax

County’s authority to enforce Section 1224 required the Board’s acquiescence; it was under

no obligation to enforce this state statute. In other words, the decision to enter the

Agreement required county policymakers to make a conscious choice from among the

various alternatives, including the alternative not to enforce the statute at all. As a result,

the policy of enforcing Section 1224 is one “for which the [County] is actually responsible”

in accord with the principles of Monell liability. Pembaur,

; see also Harris,

; Vives,

; Spell,

.

The County’s policy, however, differs from the Commonwealth’s policy; although

the two overlap, they are not coextensive. The Commonwealth is responsible for applying

the entire Code to all outdoor advertising. The County, by contrast, has decided to enforce

only Section 1224, to enforce it only on certain roads and certain days of the week, and to

fine only egregious violators. J.A. 498–499. The County’s policy does not incorporate

other provisions of Virginia’s sign regulations but is limited to signs within the limits of

highways. Perhaps for that reason, the County’s policy does not incorporate Section 1204,

22 which excepts certain categories of outdoor advertising from particular provisions of

Virginia’s sign regulations “if securely attached to real property or advertising structures.”

; see, e.g.,

§ 33.2-1204(1) (exempting advertisements

“securely attached to a place of business or residence”), (2) (exempting signs “on any

farm”), (14) (exempting signs “upon property warning the public against hunting, fishing,

or trespassing thereon”). Neither Section 1225 nor the Agreement mention Section 1204,

and although the DCC Policy explicitly lists exceptions to enforcement, it does not include

the exceptions in Section 1204 or otherwise purport to apply that statute.

BTA’s complaint does not allege any other source of County policy regarding the

enforcement of Section 1224 or any custom outside the written policy. But BTA contends

that the County’s policy must implicitly incorporate Section 1204’s exceptions in order to

comply with state law. The County persuasively explains how its enforcement policy

accords with the broader scheme of Virginia sign regulation. But more fundamentally, our

question is not whether the County is complying with state law but whether the policy it

voluntarily adopted and follows—whether in step with other state regulations or not—

caused the alleged infringement of BTA’s constitutional rights. The County did not adopt

the exceptions in the pre-amendment version of Section 1204 into its policy, therefore the

County cannot be liable for harms allegedly caused by those exceptions.

The target of BTA’s First Amendment claim is Virginia’s sign regulations.

Although the County can be liable for enforcing a state regulation it has voluntarily adopted

as its own, it cannot be held liable for state statutes it has not consciously adopted into its

own policy. Because BTA has not alleged a link between the County’s policy of enforcing

23 Section 1224 and its alleged injury, BTA’s Section 1983 action against the County for

violation of its First Amendment rights fails.

C.

Separate from its challenge to the constitutionality of the Virginia statutes, BTA

also alleges that the County selectively enforced its policy against BTA in violation of the

Equal Protection Clause of the Fourteenth Amendment. To state a claim, BTA must plead

facts that, accepted as true, would allow the court to draw the reasonable inference that

“the government’s enforcement process ‘had a discriminatory effect and that it was

motivated by a discriminatory purpose.’” Cent. Radio Co. v. City of Norfolk,

,

634–635 (4th Cir. 2016) (quoting Wayte v. United States,

(1985)).

Discriminatory purpose implies more than “awareness of consequences”; rather, a plaintiff

must show that the decisionmaker “selected or reaffirmed a particular course of action at

least in part ‘because of’ . . . its adverse effects upon an identifiable group.” Wayte,

(internal quotation marks omitted); cf. Village of Willowbrook v. Olech,

(2000) (per curiam) (affirming viability of class-of-one equal protection claim).

Our precedent has recognized several factors as probative of discriminatory intent,

including:

(1) evidence of a “consistent pattern” of actions by the decisionmaking body disparately impacting members of a particular class of persons; (2) historical background of the decision, which may take into account any history of discrimination by the decisionmaking body or the jurisdiction it represents; (3) the specific sequence of events leading up to the particular decision being challenged, including any significant departures from normal procedures; and (4) contemporary statements by decisionmakers on the record or in minutes of their meetings.

24 Sylvia Dev. Corp. v. Calvert County,

, 819 (4th Cir. 1995); see also Cent.

Radio,

.

We agree with the district court that BTA failed to plead sufficient facts showing

that the County was motivated by a discriminatory intent. The facts alleged in BTA’s

complaint primarily concern discriminatory effect. But a disparate impact standing alone

does not demonstrate discriminatory intent, see Sylvia Dev. Corp., 48 F.3d at 823, and a

few instances of disparate impact in enforcement do not amount to a consistent pattern.

BTA does not allege any significant deviation from normal procedures or indicting

statements by decisionmakers. BTA’s allegations that citizen complaints spurred the

Commissioner’s enforcement against it and that a Board member called a BTA officer to

demand compliance with the law before the County began issuing penalties do not tend to

show that the County intentionally, much less “irrationally or arbitrarily,” treated BTA

differently from similarly situated parties. Tri Cnty. Paving, Inc. v. Ashe County,

(4th Cir. 2002). The same goes for the allegation that County training materials

included photographs of BTA’s signs as examples of Section 1224 violations. We agree

with the district court that these allegations are, at best, consistent with a discriminatory

scheme but ultimately fall short of nudging BTA’s selective enforcement claim “across the

line from conceivable to plausible.” Bell Atl. Corp. v. Twombly,

(2007);

see also Bruce & Tanya,

.

V.

Lastly, we consider the County’s cross-appeal of the denial of its request for

attorney’s fees and costs under

.

25 Section 1988 gives courts discretion to award attorney’s fees and costs to a

“prevailing party” in various kinds of civil rights cases, including suits brought under

Section 1983.

(b). A court may award attorney’s fees to a prevailing

defendant but only “upon a finding that the plaintiff’s action was frivolous, unreasonable,

or without foundation.” Fox v. Vice,

(2011) (quoting Christiansburg

Garment Co. v. EEOC,

(1978)). A district court’s determination in this

regard is entitled to “great deference.” EEOC v. Great Steaks, Inc.,

(4th

Cir. 2012).

As an initial matter, we reject the County’s assertion that the district court

erroneously required it to show that BTA’s claims were “tantamount to bad faith.” County

Opening & Response Br. at 24. The district court quoted and applied the correct standard,

and its citation to a Sixth Circuit decision does not indicate otherwise when considered in

context. See Bruce & Tanya & Assocs. v. Bd. of Supervisors of Fairfax Cnty., No. 1:17-

cv-1155 (LMB/TCB),

, at *3 (E.D. Va. Jan. 17, 2019) (quoting

“frivolous, unreasonable, or without foundation” standard from Fox v. Vice); see also

Riddle v. Egensperger,

(6th Cir. 2001) (acknowledging that “[a]

prevailing defendant should only recover upon a finding by the district court that the

plaintiff’s action was frivolous, unreasonable, or without foundation, even though not

brought in subjective bad faith” (internal quotation marks omitted)).

The district court ruled that BTA’s selective enforcement claim did not warrant fee

shifting because it “was not so groundless as to constitute an abuse of the judicial process.”

Bruce & Tanya,

, at *3 (internal quotation marks omitted). The court

26 noted that it denied the County’s first motion to dismiss the selective enforcement claim

and that the state court’s rejection of a similar claim did not prove that it was frivolous.

We discern no abuse of discretion in this ruling. On appeal the County asserts that its

success on BTA’s other claims against it also justified a fee award, but that contention does

not strengthen its argument. BTA’s First Amendment claim against the County, although

not successful, was not frivolous, unreasonable, or without foundation. The district court

did not abuse its discretion in denying the County’s fee request.

* * *

BTA has failed to establish that enforcement of Virginia’s signage regulations

caused it harm of a constitutional dimension. Though it prevailed below, the County has

not established that the claims BTA raised were frivolous. We therefore affirm both the

district court’s judgment dismissing BTA’s claims and its judgment denying the County’s

request for attorney’s fees.

AFFIRMED

27