Denial of Leave to Amend Under Fed. R. Civ. P. 15(b) During Trial to Convert Facial Challenge of Ordinance to As-Applied Challenge Upheld by Eleventh Circuit

In Doe v. Miami-Dade Cnty., No. 19-10254 (11th Cir. Sept. 9, 2020), the Eleventh Circuit affirmed a district court’s decision not to allow two plaintiffs to amend their pleadings at the end of trial to add an unpled “as applied” challenge to a county ordinance which they contended imposed an ex post facto punishment.

The plaintiffs were two “former sex offenders and currently homeless residents of Miami-Dade County, Florida” who challenged a law that “restricts certain sex offenders from living within 2,500 feet of a school.” They alleged that the ordinance, passed after they were convicted of their crimes and so restrictive that it confined them to reside only in remote pockets of the country, constituted an ex post facto prohibition in violation of the U.S. and Florida Constitutions. The complaint “styled their suit as a facial challenge,” seeking a permanent injunction against “enforcing the Ordinance against anyone whose qualifying offense occurred before the enactment of the Ordinance.”

Five days into a bench trial, plaintiffs “moved to conform the pleadings to the evidence under Federal Rule of Civil Procedure 15(b),” asking to “add an as-applied challenge to their second amended complaint.” They argued that “they already established an as-applied ex post facto claim at trial by introducing evidence of the individual Does’ circumstances, and that the County implicitly consented to allow the Does to try this theory of the case.” In response, the county argued that it had no prior knowledge of an “as-applied” claim and that it would have litigated the case differently otherwise. The court denied the amendment and entered judgment for the county on the facial challenge.

The Eleventh Circuit affirms. It notes at the outset that in the ordinary course, “a plaintiff asserting a facial challenge does not need to amend her complaint to bring an as-applied challenge.” This is because, quoting AFSCME v. Scott, 717 F.3d 851 (11th Cir. 2013), “the line between facial and as-applied relief is a fluid one” and “perhaps the best understanding of constitutional challenges is that there is no single distinctive category of facial, as opposed to as-applied, litigation.” Nevertheless, because the parties briefed Rule 15(b) and “[d]espite our misgivings about Rule 15(b)’s application, we evaluate the Does’ arguments under the framework of that Rule.”

The panel upholds the order on two grounds. First, the County lacked notice of an as-applied challenge. “[T]he County did not agree to the admission of evidence supporting an as-applied ex post facto challenge that was irrelevant to the facial ex post facto challenge,” and it “ did not have notice of an as-applied claim because it received assurances that the Does were not interested in an as-applied claim” at the pretrial conferences and several times during trial.

Second, the County was prejudiced by the delay. As opposed to a facial challenge, “to refute an as-applied challenge, the County would have needed to show that the Ordinance’s effect on the Does was not excessively punitive in relation to its purpose. For this reason, the County argues that it would have litigated its case differently if it had known the Does sought individualized relief from the Ordinance. The County says it would have cross-examined the Does more extensively, introduced more evidence to impeach the Does, asked the Does to undergo physical or mental examinations, hired expert witnesses to evaluate the Does’ ‘individualized recidivism concerns,’ and called as witnesses the professionals who treated the Does.”

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