3:14-cv-03504-CMC

Date Filed 11/21/14

Entry Number 15

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
C/A No.: 3:14-cv-03504-CMC
Teresa Culpepper, on behalf of her minor
child, C.C.,

)
)
)
Plaintiff, )
)
v.
)
)
Kevin A. Shwedo, in his official capacity as )
the Executive Director of the South
)
Carolina Department of Motor Vehicles and )
Tammy King, in her official capacity as the )
Manager of the Anderson Office of the
)
South Carolina Department of Motor
)
Vehicles,
)
)
Defendants. )

MOTION TO DISMISS ON BEHALF OF

DEFENDANTS KEVIN SHWEDO
AND TAMMY KING

NOW COME Defendants Kevin A. Shwedo and Tammy King, in their official capacities
(hereinafter the Defendants), and enter this responsive pleading in the above-referenced action.
As set forth below, the Defendants consider this matter to be moot, and request that it be
dismissed. Previously, the Defendants received the consent of counsel for the Plaintiff to answer
or otherwise file a responsive pleading in this case no later than October 24, 2014, which was
approved by this Court. [NEF Dkt. #11]. The Court later extended the time to file a responsive
pleading to November 21, 2014. [NEF Dkt. # 14]. The Defendants requested the additional time
because the parties are attempting to resolve any remaining differences by agreement, and
needed the additional time to reach agreement.
The parties have not yet reached agreement on all matters before them, and because the
Defendants must file a responsive pleading, they request that the Court dismiss the case on

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grounds of mootness under Rule 12(b)(1), FED.R.CIV.P.1 The Defendants make this request
based on the following.
LEGAL DISCUSSION
1.

Plaintiff has alleged that the South Carolina Department of Motor Vehicles

(SCDMV) was enforcing an unconstitutional requirement that C. C., a sixteen-year-old high

school student, remove his everyday makeup before being permitted to take a drivers license
photo. Plaintiff alleges that C. C. is male, but is gender non-conforming, and wears makeup and
androgynous clothing or clothing typically worn by women on a regular basis. (Plaintiffs
Complaint, 1). C.C. presented himself for a drivers license photograph at the Anderson
SCDMV Office on or about March 3, 2014.
2.

On or about May 27, 2014, SCDMV updated its Procedure DL-201 concerning

Credential Photo Security. (Exhibit A). Specifically, regarding attire and appearance,
Section III(A)(2) of the procedure notes that [r]egular everyday cosmetic makeup is acceptable
because it is generally used to highlight natural beauty and/or to hide blemishes or flaws. The
directive is not gender specific.
3.

Plaintiff filed this action on September 2, 2014. [NEF Dkt. #1].

4.

On or about October 7, 2014, SCDMV sent a letter to C.C., attached as Exhibit

B, stating that he could have his license photograph taken with the appearance you presented
on March 3, 2014.
5.

[A] case is moot when the issues presented are no longer live or the parties lack

a legally cognizable interest in the outcome. Powell v. McCormack, 395 U.S. 486, 496 (1969);
see also Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 763 (4th Cir. 2011). The
1

Prior to the Courts entry of an order regarding this motion, or Plaintiffs response to this
motion, the Defendants intend to attempt to reach and finalize an agreement with Plaintiff.
2

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requirement that a case involve an actual, ongoing controversy extends throughout the pendency
of an action. See Preiser v. Newkirk, 422 U.S. 395, 401 (1975). To satisfy the Article III case or
controversy requirement, [a] litigant must have suffered some actual injury that can be
redressed by a favorable judicial decision. Iron Arrow Honor Socy v. Heckler, 464 U.S. 67,
70-71 (1983). When a case or controversy ceases to exist, the litigation becomes moot and the
federal court no longer possesses jurisdiction to proceed. Id.
6.

A case can become moot due to a change in factual circumstances or a change in

the law. See Ross v. Reed, 719 F.2d 689, 693 (4th Cir. 1983) (If intervening factual or legal
events effectively dispel the case or controversy during pendency of the suit, the federal courts
are powerless to decide the questions presented.). Generally speaking, one such [factual]
circumstance mooting a claim arises when the claimant receives the relief he or she sought to
obtain through the claim. Friedmans, Inc. v. Dunlap, 290 F.3d 191, 197 (4th Cir. 2002). It is
well settled that a defendants voluntary cessation of a challenged practice does not deprive a
federal court of its power to determine the legality of the practice. Friends of the Earth, Inc. v.
Laidlaw Environmental Services, 528 U.S. 167, 189 (2000) (quoting City of Mesquite v.
Aladdins Castle, Inc., 455 U.S. 283, 289 (1982)). Voluntary cessation does not moot a case or
controversy unless subsequent events ma[ke] it absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur. See Parents Involved in Community
Schools v. Seattle School District No. 1, 551 U.S. 701, 719, 127 S.Ct. 2738, 168 L.Ed.2d 508
(2007) (quoting Friends of the Earth, Inc. 528 U.S. at 189).
7.

In this circumstance, the allegedly wrongful behavior cannot reasonably be

expected to recur. As noted above, prior to the institution of this action, on May 27, 2014,
SCDMV updated its Procedure DL-201 concerning Credential Photo Security. (Exhibit

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A). Specifically, regarding attire and appearance, Section III(A)(2) of the procedure notes that
[r]egular everyday cosmetic makeup is acceptable because it is generally used to highlight
natural beauty and/or to hide blemishes or flaws. The directive is not gender specific.
8.

Indeed, the change in policy occurred prior to the filing of the lawsuit, and was

completely voluntary on the part of SCDMV.

9.

Furthermore, the Departments letter (Exhibit B) affirms that the change in

policy applies to the Plaintiff in the very manner that he seeks in his lawsuit. Thus, with regard
to Plaintiff, it is practically impossible for the allegedly wrongful behavior to be reasonably
expected to recur.
CONCLUSION
For these reasons, SCDMV respectfully requests that this action be dismissed with
prejudice as moot.

Dated this the 21st day of November, 2014.

Respectfully Submitted,
RICHARDSON PLOWDEN & ROBINSON, P.A.
s/Eugene H. Matthews
Eugene H. Matthews, ID # 7141
1900 Barnwell Street (29201)
Post Office Drawer 7788
Columbia, South Carolina 29202
T: (803) 771-4400
F: (803) 779-0016
E-mail: gmatthews@RichardsonPlowden.com
COUNSEL FOR DEFENDANTS KEVIN SHWEDO AND
TAMMY KING, IN THEIR OFFICIAL CAPACITIES

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