Goode v. Phila ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-12-2008
Goode v. Phila
Precedential or Non-Precedential: Precedential
Docket No. 07-3164
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3164
W. WILSON GOODE, JR., IN HIS OFFICIAL CAPACITY
AS A MEMBER OF THE
CITY COUNCIL OF THE CITY OF PHILADELPHIA;
JOAN L. KRAJEWSKI, IN HER OFFICIAL CAPACITY AS
A MEMBER OF THE
CITY COUNCIL OF THE CITY OF PHILADELPHIA;
FRANK DICICCO, IN HIS OFFICIAL CAPACITY AS A
A MEMBER OF THE CITY
COUNCIL OF THE CITY OF PHILADELPHIA;
FRANK RIZZO, IN HIS OFFICIAL CAPACITY AS A
MEMBER OF THE CITY COUNCIL OF THE CITY OF
PHILADELPHIA;
JAMES KENNEY, IN HIS OFFICIAL CAPACITY AS A
MEMBER OF THE CITY
COUNCIL OF THE CITY OF PHILADELPHIA;
LYNN MCCONVILLE; NATIONAL ASSOCIATION FOR
THE ADVANCEMENT OF COLORED PEOPLE,
PHILADELPHIA CHAPTER; MAYFAIR COMMUNITY
DEVELOPMENT CORPORATION; TACONY CIVIC
ASSOCIATION; WEST SHORE NEIGHBORS; SOCIETY
CREATED TO REDUCE URBAN BLIGHT,
Appellants
v.
THE CITY OF PHILADELPHIA;
ROMULO L. DIAZ, IN HIS OFFICIAL CAPACITY AS
CITY SOLICITOR
OF THE CITY OF PHILADELPHIA
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 07-00901)
Honorable John P. Fullam, District Judge
Argued June 10, 2008
BEFORE: AMBRO, CHAGARES,
and GREENBERG, Circuit Judges
(Filed: August 12, 2008)
Charles C. Sweedler (argued)
Levin, Fishbein, Sedran & Berman
510 Walnut Street
Suite 500
Philadelphia, PA 19106-0000
Attorneys for Appellants
Elizabeth S. Campbell
2
Barbara W. Mather (argued)
A. Michael Pratt
T. Joel Zuercher
Pepper Hamilton
3000 Two Logan Square
18th & Arch Streets
Philadelphia, PA 19103-0000
Attorneys for Appellees
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. INTRODUCTION
This matter comes on before this court on appeal from an
order entered in the District Court on June 21, 2007, dismissing
this case with prejudice for lack of standing of each of the
plaintiff-appellants and for failure to state a federal claim on
which the court could grant relief. The case concerns the
legality of a settlement agreement (“Agreement”) which the
Philadelphia City Solicitor (“Solicitor”), acting on behalf of the
City of Philadelphia (“City”), entered into with certain
Philadelphia billboard operators concerning the regulation of
billboards in Philadelphia. Appellants claim that in entering into
the Agreement the Solicitor exceeded his executive authority,
usurped the City Council’s lawmaking powers, and violated
3
Philadelphia zoning ordinances. The District Court dismissed
the action because it concluded that none of the appellants had
standing to pursue the claims. The court further held that “no
federal claims of any sort can be discerned from [appellants’]
complaint.” App. at 105.
Appellants then appealed. The primary issue on this
appeal is whether appellants have standing to bring this action.
For the reasons that we will explain, we hold that the District
Court correctly concluded that appellants do not have standing.
Accordingly, we will affirm its order of June 21, 2007, except
that inasmuch as the District Court by reason of appellants’ want
of standing did not have subject matter jurisdiction, see
Pennsylvania Prison Soc’y v. Cortes, 508 F.3d 156, 158-59 (3d
Cir. 2007), and we do not pass on the merits of the complaint,
we will modify the order to the end that it will be without
prejudice to appellants instituting a similar action in the state
courts.
II. BACKGROUND
This case is an outgrowth of an action that several
Philadelphia billboard operators filed in November 2005 in the
Eastern District of Pennsylvania against the City challenging
certain of its regulations of billboard advertisements. Free
Speech, LLC v. City of Philadelphia, Civ. No. 05-6188 (E.D.
Pa. filed Nov. 29, 2005). The plaintiffs in Free Speech were
three outdoor advertising companies, specifically CBS Outdoor
Inc., Clear Channel Outdoor, Inc., and H.A. Steen Industries,
Inc., as well as Free Speech, LLC, an association which
included other plaintiffs as its members (collectively “Billboard
4
Operators”). In the Free Speech action the Billboard Operators
questioned the legality of the Philadelphia City Council’s June
2005 amendments to the Philadelphia Code’s regulation of
“outdoor advertising signs” within the City. The Billboard
Operators claimed that the new regulations imposed fees and
certain other requirements on “outdoor advertising signs” based
on their content and that the regulations therefore violated the
Billboard Operators’ First Amendment right to free speech.
In August 2006, following long negotiations, the
Solicitor on behalf of the City entered into the Agreement with
the Billboard Operators to resolve the Free Speech action.1 The
Agreement, however, was not a federal consent judgment
reviewed or issued by the Free Speech court and was what the
parties have called a “private” Agreement. The Agreement
provides that:
A Certified Billboard identified and described on
a Certified Inventory shall be deemed to be a
lawful Outdoor Advertising Sign under the
Philadelphia Code, and at all times shall retain
that lawful status, and the City shall issue an
annual ‘License for Individual Outdoor
Advertising Sign’ for each such Certified
Billboard . . . .
App. at 58 (Agreement § V.A.). In addition to providing that
the City would issue licenses for the specified billboards, the
Agreement specifies comprehensive procedures for resolving
1
The Agreement was signed “City of Philadelphia By:
Romulo L. Diaz, Jr. (ID No. 88795) City Solicitor.” App. at 76.
5
any disputes that may arise from its implementation. Thus, the
Agreement provides that:
[U]nder this Consent Agreement, all parties
hereto have agreed to forego their statutory rights
under the Philadelphia Code for recourse to the
administrative agencies and the Courts, and have
agreed to the final determinations of a Special
Master with respect to certain disputes arising
under this Consent Agreement regarding the
lawful status of certain Outdoor Advertising
Signs.
App. at 47-48 (Agreement § I.). In addition, the Agreement
provides that:
All disputes with respect to the regulation of a
Certified Billboard arising under the provisions of
the Philadelphia Code as further specified and
provided by this Agreement, shall be resolved in
the following manner:
1. In the event that a Settling Party or the City
believes there is such a dispute, it shall provide
written notice of such dispute to the other Party.
Within 10 business days after receipt of such
notice, unless another time is mutually agreed
upon, the concerned Parties shall meet and
exchange all documents and other information
and make a good faith effort to resolve the dispute
at that time.
2. In the event that the Parties are unable to
6
resolve the dispute they shall immediately submit
the matter to the Special Master for final and
binding decision.
3. The Special Master shall receive information
from the Parties and conduct all arbitrations in
accordance with the Commercial Arbitration
Rules of the American Arbitration Association, or
pursuant to such procedures as the Special Master
may propose and to which the Parties agree.
App. at 59 (Agreement § V.C.). The Agreement also provides
that:
This Agreement shall be effective and binding on
the Parties, their successors and assigns for the
Effective Period and shall supersede conflicting
provisions of law. This Agreement shall become
effective upon the Effective Date.
App. at 71 (Agreement § IX.B.).
The parties in their briefs do not suggest that the City
Council approved or authorized the Solicitor to enter into the
Agreement and we are satisfied that it did not do so. The
appellees indicate, however, in their brief, without citation to the
record, that:
the Solicitor’s internal evaluation of the merits of
the litigation and consideration of the issues
raised [and] his views and goals for settlement
were made known publicly throughout the
negotiations on multiple occasions, including in
testimony to City Council on the Law
7
Department’s budget in April 2005, and in an
April 2006 meeting with the Mayor and
representatives of community organizations, some
of whom are plaintiffs in this matter.
Appellees’ br. at 4 n.1. 2 Appellants in their reply brief do not
challenge this statement.
On March 6, 2007, appellants filed this action claiming
that the Agreement should not be enforced. Appellants are five
members of the Philadelphia City Council (a numerical minority
of that body), five community organizations, and a Philadelphia
resident. The City Council itself, however, was not a plaintiff
in the action and the Council as a body did not authorize its five
members to bring the case even though they purport to sue in
their official capacities as Council members. In their complaint
appellants advanced five challenges to the Agreement predicated
on their belief that the Agreement is unlawful because of: (1) its
usurpation of their legislative powers in violation of the Fifth
and Fourteenth Amendments; (2) its deprivation of their access
to the courts in violation of the First, Fifth, and Fourteenth
Amendments and its deprivation of their privileges and
2
We have no explanation for the circumstance that the
testimony in April 2005 was before the Council adopted the
amendments to the Philadelphia Code in June 2005 and before
the Billboard operators filed Free Speech. We recognize,
however, that it is possible that the Billboard Operators and the
Solicitor were trying to resolve their differences before the
Council adopted the June 2005 amendments and the Billboard
Operators filed Free Speech.
8
immunities secured by Article IV of the Constitution; (3) its
deprivation of their right to petition the legislature in violation
of the First, Fifth, and Fourteenth Amendments; (4) its violation
of the Pennsylvania Sunshine Act, 65 Pa. Cons. Stat. Ann. §§
701, et seq. (West 2000); and (5) the circumstance that it
provides for zoning by contract. App. 17-19. The defendants,
now the appellees, are the City and the Solicitor in his official
capacity.3 As a matter of convenience we sometimes refer to the
Council members as legislators, ordinances as legislation, and
the Council as the legislature because precedents germane to the
case often involve use of those terms.
The appellees moved to dismiss the complaint. As we
indicated at the outset, in a memorandum entered on June 21,
2007, the District Court granted appellees’ motion and
dismissed the case with prejudice for two reasons. First it held
that no appellant had standing to bring the action. Then it held
that it could not discern a federal claim in the complaint. See
Fed. R. Civ. P. 12(b)(6). Appellants appeal from the District
Court’s order dismissing their action with prejudice.
III. JURISDICTION AND STANDARD OF REVIEW
3
Appellants did not include the Billboard Operators as
defendants but we will not linger on the question of whether
they were necessary or indispensable parties under Fed. R. Civ.
P. 19, as we agree with the District Court that appellants do not
have standing to bring this action and thus the District Court did
not have jurisdiction over this action. See Pennsylvania Prison
Soc’y, 508 F.3d at 158-59.
9
Appellants pled that the District Court had federal
jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(3) and (4) and
42 U.S.C. § § 1983 and 1988 and supplemental jurisdiction over
their state law claims pursuant to 28 U.S.C. § 1367. We have
jurisdiction on appellants’ appeal pursuant to 28 U.S.C. § 1291.
We exercise plenary review of standing issues, but review the
factual elements underlying the District Court’s determination
of standing on a clear error standard. See Gen. Instrument Corp.
v. Nu-Tek Elec. & Mfg., Inc., 197 F.3d 83, 86 (3d Cir. 1999).
IV. DISCUSSION
Our principal concern on this appeal is to determine
whether any appellant has standing to bring this action. We start
this inquiry by quoting Lujan v. Defenders of Wildlife, 504 U.S.
555, 112 S.Ct. 2130 (1992), in which the Supreme Court
described the elements necessary for establishing “the
irreducible constitutional minimum of standing” under Article
III of the Constitution as follows:
First, the plaintiff must have suffered an injury in
fact – an invasion of a legally protected interest
which is (a) concrete and particularized, . . . and
(b) actual or imminent, not conjectural or
hypothetical . . . . Second, there must be a causal
connection between the injury and the conduct
complained of – the injury has to be fairly . . .
trace[able] to the challenged action of the
defendant, and not . . . th[e] result [of] the
independent action of some third party not before
10
the court. Third, it must be likely, as opposed to
merely speculative, that the injury will be
redressed by a favorable decision.
Id. at 560, 112 S.Ct. at 2136 (internal quotation marks and
citations omitted). In determining whether appellants have
standing, we must consider their specific allegations and the
relief which they seek. See City of Los Angeles v. Lyons, 461
U.S. 95, 105-06, 103 S.Ct. 1660, 1667 (1983).
A. Whether the City Council appellants have standing as
legislators
Appellants argue that “[t]he City Solicitor, by signing a
settlement agreement that claims to supersede all contrary
provisions of law, seeks to usurp [the] City Council’s exclusive
power to repeal or amend existing ordinances, and each
individual Council Member’s right to consider and vote on any
such proposed changes.” Appellants’ br. at 10. Indeed, the
complaint correctly alleges that the Agreement provides that it
“shall supersede conflicting provisions of law.” App. at 71.
Appellants characterize the Agreement as an attempt “to evade
[the] City Council’s exclusive power to consider and enact
ordinances.” Appellants’ br. at 11. According to appellants:
If the City Council plaintiffs lack standing here,
then any executive official may ‘supersede’ any
law he or she chooses, simply by inserting the
desired provisions in a private litigation
settlement agreement. As the Free Speech, LLC
11
case demonstrates, government officials would
privately contract to supersede laws that have no
bearing on the ostensible issues in the litigation
they purport to settle. Such sweeping changes
would be enacted through a settlement that, in its
formation and execution, is deliberately hidden
from the cleansing gaze of public or legislative
scrutiny.
Id. at 16. Moreover, appellants argue that the political process
is insufficient to deter the Solicitor’s abuse of his powers
because “[r]efusing standing on this basis would empower the
executive branch to ‘legislate’ as it saw fit, constrained only by
the prospect of a supermajority of the legislature re-enacting
statutes that were already on the books.” Id. at 15. Appellants’
standing argument, however, clearly is overstated, as we are
addressing only appellants’ standing and not the standing of any
other putative plaintiff and are addressing appellants’ standing
only in the District Court and not in a state court if they refile
this case in that forum.
We start our standing inquiry by building on the
proposition that “[l]egislators, like other litigants in federal
court, must satisfy the jurisdictional prerequisites of Article III
standing . . . .” Russell v. DeJongh, 491 F.3d 130, 133 (3d Cir.
2007). In Russell, we discussed the doctrine of standing in the
context of cases where a legislator brings suit against another
government official:
Concerns for separation of powers and the limited
role of the judiciary are at the core of Article III
12
standing doctrine and the requirement that a
plaintiff allege an injury in fact. Those concerns
are particularly acute in legislator standing cases,
and they inform the analysis of whether a
legislator plaintiff has asserted an injury in fact
sufficient to confer standing to sue. . . . The
Supreme Court, this Court, and others have held
that legislators have a legally protected interest in
their right to vote on legislation and other matters
committed to the legislature, which is sometimes
phrased as an interest in maintaining the
effectiveness of their votes. Not every affront to
a legislator’s interest in the effectiveness of his
vote, however, is an injury in fact sufficient to
confer standing to sue.
Id. at 133-34 (internal quotation marks and citations omitted).
In Russell we observed that “[i]n particular, the
authorities appear to hold uniformly that an official’s mere
disobedience or flawed execution of a law for which a legislator
voted . . . is not an injury in fact for standing purposes.” Id. at
134 (citing Chiles v. Thornburgh, 865 F.2d 1197, 1205-06 (11th
Cir. 1989); Goldwater v. Carter, 617 F.2d 697, 702 (D.C. Cir.)
(en banc), vacated on other grounds, 444 U.S. 996, 100 S.Ct.
533 (1979); Daughtrey v. Carter, 584 F.2d 1050, 1057 (D.C. Cir.
1978); Harrington v. Bush, 553 F.2d 190, 203-04, 210, 213-14
(D.C. Cir. 1977); Harrington v. Schlesinger 528 F.2d 455, 459
(4th Cir. 1975)). See also Chenoweth v. Clinton, 181 F.3d 112,
113, 115 (D.C. Cir. 1999) (holding that members of House of
Representatives did not have standing to sue President for
13
issuing an executive order on the basis that it had “denied them
their proper role in the legislative process”); United Presbyterian
Church in the U.S.A. v. Reagan, 738 F.2d 1375, 1381-82 (D.C.
Cir. 1984) (holding that member of House of Representatives
did not have standing to sue President for issuing an executive
order that allegedly exceeded authority that Congress granted
intelligence agencies and violated limitations imposed by
Congress).
We went on in Russell to explain that “[t]he principal
reason for this [limitation of the definition of injury for standing
purposes] is that once a bill has become law, a legislator’s
interest in seeing that the law is followed is no different from a
private citizen’s general interest in proper government.” 491
F.3d at 135. The Court of Appeals for the Eleventh Circuit
stated the principle similarly in Chiles when it held that a
senator did not have standing to sue the defendants for failing to
comply with a statute for which he voted because “[s]uch a
claim of injury . . . is nothing more than a ‘generalized
grievance[] about the conduct of [] government’” and therefore
is insufficient to confer standing. 865 F.2d at 1205 (quoting
Flast v. Cohen, 392 U.S. 83, 106, 88 S.Ct. 1942, 1955 (1968)).
See also Mountain States Legal Found. v. Costle, 630 F.2d 754,
770 (10th Cir. 1980) (“A private litigant, whether he be a
legislator, a citizen or a taxpayer must, in order to have
‘standing’ to sue, demonstrate a personal stake in the outcome,
and demonstrate that he is the proper party to request
adjudication of the particular issue.”).
Appellants cite a number of cases to support their
contention that the City Council members have standing to bring
14
this action. To begin, they rely heavily on Dennis v. Luis, 741
F.2d 628 (3d Cir. 1984), and Silver v. Pataki, 755 N.E.2d 842(N.Y. 2001), both of which concerned legislators’ standing to
challenge actions by the governors of their jurisdictions. In
Dennis we held that a group of legislators had standing to
challenge the appointment by the Governor of the Virgin Islands
of an “acting” Commissioner of Commerce because the
commissioner’s appointment required the legislature’s advice
and consent pursuant to Section 16(c) of the Virgin Islands
Revised Organic Act of 1954, 48 U.S.C. § 1597(c), and the
Virgin Islands Code, V.I. Code Ann. tit. 3, § 332(b) (1995). 741
F.2d at 631. In Silver the New York Court of Appeals held that
the Speaker of the New York State Assembly had standing to
challenge the Governor’s line-item veto of portions of bills
which the legislature passed. 755 N.E.2d at 847.
Clearly Dennis and Silver are distinguishable from this
case. In Dennis the legislator plaintiffs claimed that the
Governor’s actions infringed on “their unique statutory right to
advise the Governor on executive appointments and to confer
their approval or disapproval in this regard.” 741 F.2d at 631.
In finding that the plaintiffs had standing we emphasized that
“[t]he interest asserted is simply not a ‘generalized interest of all
citizens in constitutional governance . . . .’” Id. (quoting Valley
Forge Christian Coll. v. Americans United for Separation of
Church and State, Inc., 454 U.S. 464, 483, 102 S.Ct. 752, 764
(1982) (internal quotation marks omitted)). Moreover, we
explained that “[s]ince the right to advise and consent has been
vested only in members of the legislature, and since only
members of the legislature are bringing this action, the
allegation that this right has been usurped . . . [is] sufficiently
15
personal to constitute an injury in fact, thus satisfying the
minimum constitutional requirements of standing.” Id.In a case of the same genre as Dennis, Silver concerned
an allegedly unlawful veto by the Governor of provisions of bills
that the legislature passed with the plaintiff’s support, leading
the court to describe the legislator plaintiff’s lawsuit as an
attempt “to uphold that legislative victory against a claimed
unconstitutional use of the veto power nullifying his vote.” 755
N.E.2d at 848. Thus, Silver involved an alleged unlawful
interference with the legislative process, not, as here, an
allegedly unlawful interference with the operation of municipal
ordinances which have the force of laws. The Silver court was
concerned that if it refused to review the Governor’s veto the
absence of judicial review “could render a legislator’s vote
meaningless and unnecessarily dilute one’s legislative
responsibilities.” Id. at 846. Thus, even laying to one side the
circumstance that Silver was a case in a state court not limited
by the exacting federal standing requirements, Silver is
distinguishable from this case.
Here, in contrast to Dennis and Silver, the City Council
appellants do not claim that they have been deprived of
meaningful participation in the legislative process, or that they
have been unable to exercise their rights as legislators. Instead,
the allegations in their complaint concern the City’s
enforcement, or rather lack of enforcement, of the local
ordinances that the Council already had enacted and thus this
case involves only generalized complaints about the functioning
of government so that appellants have no different legally
cognizable interest in the subject matter of the action than
16
anyone else in Philadelphia.
We have not overlooked appellants’ contention advanced
during oral argument that the Agreement, by exempting
approximately 90% of the billboards in Philadelphia from the
requirements of otherwise applicable local ordinances, renders
it the functional equivalent of an amendment to or a repeal of
sections of the Philadelphia Code.4 But even if we were to agree
with this disturbing characterization, which we acknowledge is
not without force, there is no dispute that the ordinances which
appellants claim have been amended or repealed constitute
properly enacted legislation. Indeed, appellants seek to enforce
those ordinances as laws with which the Billboard Operators
must comply and appellees do not claim that the Council has
repealed them.
In considering appellants’ standing problem we come
back to the point that we emphasized in Russell that “once a bill
has become law, a legislator’s interest in seeing that the law is
followed is no different from a private citizen’s general interest
in proper government.” 491 F.3d at 135. Appellants allege
facts in the complaint that concern the City’s alleged
“disobedience or flawed execution of” the zoning ordinances for
which City Council members voted, and, as we held in Russell,
legislators lack standing to assert such claims. Id. at 134.
Appellants also refer to Cohen v. Rendell, 684 A.2d 1102(Pa. Commw. Ct. 1996), and Morris v. Goode, 529 A.2d 50 (Pa.
4
Appellees in their brief confirm the 90% figure.
17
Commw. Ct. 1987), but neither case is helpful in deciding the
present appeal. First, we are concerned, of course, with whether
the City Council appellants, indeed all appellants, satisfy federal
standing requirements, an issue that Cohen and Morris, like
Silver, which concerned standing in state court, could not
address. Second, though in Cohen and Morris the court found
that the City Council member plaintiffs had standing, in those
cases the plaintiffs, unlike appellants here, challenged actions
that affected the voting process by which ordinances are
enacted. See Cohen, 684 A.2d at 1105 (“Because Cohen, as an
elected, voting member of Council, has a legal and direct
interest in ensuring that Council follows the [voting] procedures
set forth by the Charter, we hold that he does possess standing
to bring his case against the City.”); Morris, 529 A.2d at 53(“[W]e note that the plaintiff-council members, as council
members, have a legal interest, granted by the home rule charter,
in having a quorum present to vote on council resolutions,” and
that “[b]ecause, on preliminary objections, we must assume that
a quorum of council members were not present to ratify the
negotiated contract, the conclusion must be that the plaintiff-
council members are ‘aggrieved’ and have standing to vindicate
their legal interests in this action.”) (emphasis in original).
But in this case the City Council appellants do not seek
to enforce voting procedures by which the Council enacts
ordinances. Instead, they seek to compel the enforcement of
ordinances that the Council has enacted. As we have explained,
however, individual legislators do not have standing to assert
claims based solely on the alleged “disobedience or flawed
18
execution of” enacted legislation. See Russell, 491 F.3d at 134.5
We have not overlooked the allegations of the complaint
that go beyond seeking redress to the City Council appellants on
account of the alleged infringement of their law-making
function. The extra-legislative basis for relief is predicated on
the provisions of the Agreement providing that any disputes
arising from the Agreement are to be resolved through
arbitration between the City and the Billboard Operators before
a Special Master rather than through the usual prescribed
process of being resolved in hearings before the Philadelphia
Zoning Board of Adjustment (“ZBA”). By reason of this
procedure appellants claim to be deprived of the right to
participate in hearings in which they otherwise could participate.
Appellants thus argue that the Agreement “removes the ZBA
and the courts from any proceedings concerning the legality of
the three billboard companies’ existing billboards.” Appellants’
br. at 5. Appellants also argue that the Agreement provides that
“adjudicating the legality of billboards – the most public and
intentionally conspicuous of land uses – is a private matter
between the billboard companies and the law department, to be
5
We are not suggesting that if the City Council appellants
otherwise had standing the fact that the Council as a body did
not authorize this litigation would strip them of standing as that
situation is not before us. In such a situation we might be in
agreement with Silver to the extent that it indicates that “a
controlling bloc of legislators (a number sufficient to enact or
defeat legislation) [is not] a prerequisite to plaintiff’s standing
as a Member of the Assembly.” 755 N.E.2d at 848-49.
19
heard by a private arbitrator with no public participation or
public notice.” Id.
These allegations concerning the elimination of the
normal ZBA procedures for resolution of disputes arising from
the Agreement, like appellants’ arguments based on the City
Council appellants’ legislative function, fail to support the
argument for the City Council appellants having standing. No
differently from the allegations concerning the alleged
noncompliance with the applicable billboard use, size, and
maintenance requirements, this aspect of the complaint fails to
demonstrate how the alleged exception of the particular
billboards covered by the Agreement from the applicable zoning
ordinances is causing appellants injury beyond that suffered by
a private citizen or taxpayer seeking the proper functioning of
the government. Absent particularized injury resulting from the
billboards and their alleged noncompliance with the applicable
ordinances, we fail to see how the inability of the City Council
appellants (and, for that matter, the other appellants) to
participate in disputes concerning those billboards causes them
injury in fact sufficient to confer standing.
For these reasons, we conclude that the City Council
appellants lack standing to assert their claims in their capacity
as legislators. See Lujan, 504 U.S. at 560, 112 S.Ct. at 2136.
B. Whether appellants have standing as taxpayers
Appellants also argue that they have standing as
taxpayers to bring the present action. Though the taxpayer
standing argument primarily includes Lynn McConville, the sole
20
individual appellant in this case, we note that it probably extends
to City Council appellants as they likely are taxpayers. We
question, however, whether appellants’ reliance on the taxpayer
standing argument is only an afterthought, as their complaint
does not allege that any appellant is a taxpayer in Philadelphia
or, for the matter, anywhere else.
In arguing that as taxpayers they have standing to sue,
appellants refer to the Philadelphia Zoning Code, which they
cite for establishing the right for any aggrieved person to appear
before the ZBA. Appellants claim that “[t]his statute confers
individual rights on each plaintiff,” including “City council
members, taxpayers, or community groups composed of
taxpayers.” Appellants’ br. at 20. In making their argument,
appellants mainly rely on Society Created to Reduce Urban
Blight (SCRUB) v. Zoning Board of Adjustment of the City of
Philadelphia, 729 A.2d 117 (Pa. Commw. Ct. 1999), in which
the state court explained that the provision “confer[s] standing
to any ‘taxpayer’ in Philadelphia to challenge a decision of the
Board.” Id. at 121.
In considering appellants’ claim that they have standing
as taxpayers, we reiterate that a party seeking to invoke the
judicial power of the federal courts is subject to the standing
requirements of Article III. See ASARCO Inc. v. Kadish, 490
U.S. 605, 618, 109 S.Ct. 2037, 2046 (1989); see also Cantrell
v. City of Long Beach, 241 F.3d 674, 683 (9th Cir. 2001)
(applying federal standing requirements to taxpayers’ lawsuit
even though California state law permitted standing because
“California’s lenient taxpayer standing requirements do not
relieve the [plaintiffs] of the obligation to establish a direct
21
injury under the more stringent federal requirements for state
and municipal taxpayer standing”). Thus, even if Pennsylvania
state law would have afforded appellants standing if they had
brought this action in state court, we must ensure that they
satisfy the federal requirements for standing as well.6
The complaint alleges that McConville “is a resident of
Philadelphia,” “[o]ne of the billboards implicated in this action,
located at 4800 Woodland Avenue, is directly visible from her
property,” and she “has appeared as an objector at ZBA hearings
6
Despite appellants’ arguments to the contrary, we note that
even if they could establish standing on some other basis to sue
in the Pennsylvania state courts, they might not be able to do so
on the basis of being taxpayers. Section 17.1 of the First Class
City Home Rule Act applicable in Philadelphia grants standing
to “any aggrieved person,” but states that “the term ‘aggrieved
person’ does not include taxpayers of the city that are not
detrimentally harmed by the decision of the zoning hearing
board or other board or commission created to regulate
development.” 53 Pa. Cons. Stat. Ann. § 13131.1 (West Supp.
2006). See also Spahn v. Zoning Bd. of Adjustment, 922 A.2d
24, 28 (Pa. Commw. Ct. 2007) (stating that “the General
Assembly specifically limited the definition of an ‘aggrieved
person’ by excluding taxpayers of the city who are not
‘detrimentally harmed,’” and that Section 17.1 “effectively
eliminated the grant of general taxpayer standing provided in
Section 14-1807(1) of the Code”); Society Created to Reduce
Urban Blight (SCRUB) v. Zoning Bd. of Adjustment of the City
of Phila., 921 A.2d 536, 543 (Pa. Cmmw. Ct. 2007) (same).
22
at which the billboard company operating the billboards . . .
withdrew its appeal of the City’s denial of a zoning permit for
those billboards.” App. at 11. The complaint, however, does
not include allegations adequately explaining how
implementation of the terms of the Agreement injures
McConville. Thus, though the complaint alleges that pursuant
to the Agreement the listed billboards are freed from the use,
size, and maintenance requirements of the zoning ordinances, it
does not explain how these particular exclusions from the
zoning ordinances constitute an injury in fact, i.e., “an invasion
of a legally protected interest which is (a) concrete and
particularized, . . . and (b) actual or imminent, not conjectural or
hypothetical,” with respect to McConville. Lujan, 504 U.S. at
560, 112 S.Ct. at 2136 (internal quotation marks and citations
omitted).
The complaint’s failure to allege that the Agreement and
its implementation injured McConville beyond the generalized
injury that all persons in Philadelphia suffered by reason of it is
critical, for, as we explained in Russell, “[t]he Supreme Court
has ‘consistently held that a plaintiff raising only a generally
available grievance about government – claiming only harm to
his and every citizen’s interest in proper application of the
Constitution and laws, and seeking relief that no more directly
and tangibly benefits him than it does the public at large – does
not state an Article III case or controversy.’” 491 F.3d at 135(quoting Lujan, 504 U.S. at 573-74, 112 S.Ct. at 2143). Thus,
McConville does not have standing as a taxpayer and for the
same reason the City Council appellants as taxpayers do not
23
have standing.7
In addition to arguing that as taxpayers they are entitled
to appear before the ZBA, appellants argue that “the non-City
Council plaintiffs were deprived of their legal right to petition
City Council concerning the amendments to zoning ordinances
sought via the Settlement Agreement,” referring to Philadelphia
Home Rule Charter § 2-201. Appellants’ br. at 20. Appellants
again characterize the Agreement as new legislation and claim
that “[d]efendants stripped plaintiffs of their right of access to
the courts, to debate and vote on laws, and to comment on
proposed laws, without any notice or opportunity to be heard.”
Id. at 24. But the problem with appellants’ argument is that, as
is true with respect to their contention that they have standing
based on the elimination of ZBA proceedings, they fail to
identify sufficient injury from the alleged noncompliance of the
billboards with the applicable ordinances to give them standing.
Thus, even if we characterized the Agreement as appellants do,
i.e., as legislation, without sufficient allegations concerning the
injury they suffer from the noncompliance of the noncomplying
billboards with the duly enacted ordinances, we do not see how
7
We are not suggesting that taxpayers never have standing to
challenge municipal action. We are holding only that in the
circumstances of this case no appellant has standing as a
taxpayer because no appellant has set forth allegations
explaining how he or she suffered injury by reason of being a
taxpayer. Indeed, as we indicated above, the complaint does not
allege that any appellant, even McConville, is a Philadelphia
taxpayer.
24
their inability to participate in the negotiation of the Agreement
injured them.
Appellants argue that the mere circumstance that their
injury is of a general nature should not lead to a dismissal of
their claims. In this regard they cite Clinton v. City of New
York, 524 U.S. 417, 118 S.Ct. 2091 (1998), which states:
[It is a] self-evident proposition that more than
one party may have standing to challenge a
particular action or inaction. Once it is
determined that a particular plaintiff is harmed by
the defendant, and that the harm will likely be
redressed by a favorable decision, that plaintiff
has standing – regardless of whether there are
others who would also have standing to sue.
Id. at 434-36, 118 S.Ct. at 2101-02. Appellants lack standing,
however, not because the alleged injuries they suffer are widely
felt, but because their injuries are no different in nature from the
general interest in enforcing compliance with the law which the
public shares. See Russell, 491 F.3d at 135.
We note appellants’ argument that “[n]umerous courts
have . . . held that governmental defendants may not settle
litigation by agreeing to terms that exceed their authority or
invade the rights of third parties,” and that they cite to a number
of cases to support that proposition. Appellants’ br. at 26-29
(citing Cleveland County Ass’n for Gov’t by the People v.
Cleveland County Bd. of Comm’rs, 142 F.3d 468, 476 (D.C.
Cir. 1998); Executive Bus. Media, Inc. v. U.S. Dep’t of Defense,
25
3 F.3d 759, 762 (4th Cir. 1993); People Who Care v. Rockford
Bd. of Educ. Sch. Dist. No. 205, 961 F.2d 1335, 1337 (7th Cir.
1992); Kasper v. Bd. of Election Comm’rs of the City of
Chicago, 814 F.2d 332, 341 (7th Cir. 1987); Dunn v. Carey, 808
F.2d 555, 560 (7th Cir. 1986); United States v. Alex. Brown &
Sons, Inc., 963 F. Supp. 235, 240 (S.D.N.Y. 1997); In re
Prudential Ins. Co. of Am. Sales Practices Litig., 962 F. Supp.
450, 561 (D.N.J. 1997)).
In each of these cases, however, the court either did not
address the issue of standing or found that the plaintiffs had
standing to assert their claims based on circumstances
inapplicable here so that the cases are distinguishable from this
case and are not guides to us here. See Cleveland County Ass’n
for Gov’t by the People, 142 F.3d at 472-73 (holding
unincorporated association of voters within county had standing
to challenge consent degree concerning method for electing
county commissioners because “its members have been denied
the opportunity to vote for a full slate of the elected officials of
their choice” which the court described as members’ “protected
voting rights”); Executive Bus. Media, 3 F.3d at 761 (discussing
challenge brought by company competing for government
contract against settlement agreement between government and
competitor in which competitor was awarded contract); People
Who Care, 961 F.2d at 1336-37 (discussing challenge brought
by unions against consent degree that would undo certain
provisions in applicable collective bargaining agreements);
Kasper, 814 F.2d at 339 (discussing challenge brought by parties
who submitted proposed consent decree to district court for
voter registration procedures after district court declined to enter
proposed consent decree); Dunn, 808 F.2d at 560 (affirming
26
district court’s decision not to join to federal case individuals
who were parties in separate state action challenging federal
consent decree entered as part of federal case); Alex. Brown &
Sons, 963 F. Supp. at 236, 240 (discussing challenge which
intervening parties in related multi-district action brought
against proposed consent decree proposed by the parties in the
case); In re Prudential Ins., 962 F. Supp. at 479, 500 (discussing
challenge by party in action consolidated in MDL case to
proposed settlement agreement).
Appellants also refer to League of Residential
Neighborhood Advocates v. City of Los Angeles, 498 F.3d 1052(9th Cir. 2007). There, the City of Los Angeles entered a
settlement agreement with an Orthodox Jewish congregation
granting the congregation a conditional use permit subject to
numerous restrictive conditions to operate a synagogue in a
residential use zone. Id. at 1053. In an action that neighbors of
the synagogue brought challenging the settlement, the Court of
Appeals for the Ninth Circuit held that the agreement violated
municipal zoning laws and therefore was unenforceable. Id. at
1056-57. In doing so, however, the court of appeals did not
address the question of whether the plaintiffs had standing to
assert their claims. See id. at 1053-55. This omission seems
understandable, as the neighbors surely would be impacted
directly by a large public facility located near them and
accordingly would suffer a particularized injury from the
operation of the facility very different from that of the general
public. In the circumstances we do not consider that case to be
useful in determining whether appellants have standing in the
present action.
27
In addition, appellants argue that Keith v. Volpe, 118
F.3d 1386 (9th Cir. 1997), a case like League of Residential
Advocates from the Court of Appeals of the Ninth Circuit,
should guide our analysis. In Keith an advertising billboard
developer who was not a party in a case leading to entry of a
federal consent decree involving a freeway appealed from the
district court’s entry of a preliminary injunction prohibiting the
issuance of permits that the developer was seeking allegedly in
violation of the consent decree. 118 F.3d at 1388. Although, as
had been true in the proceedings leading to the consent decree,
the developer was not a party in Keith, he nevertheless
participated in the Keith proceedings before the court by
responding to an order to show cause through the filing of a
memorandum and engaging in the oral argument prior to the
court issuing the preliminary injunction. Id. at 1389-90. The
Court of Appeals for the Ninth Circuit concluded that the
developer had standing to appeal because the developer, in
participating in the district court proceedings, did so at the
district court’s request and an injunction enforcing the consent
decree would have been adverse to the developer’s interests.
Thus, the court of appeals regarded the appellant as having been
“haled into this action by the district court over his objections.”
Id. at 1391 & n.7.
Here, in contrast, no one haled appellants into court.
Rather, appellants initiated the present action in the District
Court, which responded by dismissing their case for lack of
standing. Therefore, other than the fact that appellants
participated in the District Court proceedings, there are no
pertinent similarities between appellants in this case and the
developer in Keith with respect to standing issues. Moreover,
28
we cannot allow the fact that appellants filed the complaint and
then participated in the District Court proceedings to establish
standing. To do so would permit individuals to assert claims
that they have no standing to assert, argue that they have
standing, have their claims dismissed, and then establish
standing in the court of appeals based on their participation in
the district court proceedings. Such a process would circumvent
the need for the parties to meet “irreducible constitutional
minimum” requirements to establish standing, Lujan, 504 U.S.
at 560, 112 S.Ct. at 2136. We therefore reject appellants’
argument that Keith applies to this case.
In conclusion, although appellants argue that they have
standing as taxpayers pursuant to state law, they have failed to
allege any facts showing that they satisfy the federal
requirements for standing with respect to the taxpayer
appellants.
C. Whether the community organization plaintiffs have
associational standing
An association in some circumstances may pursue claims
as a representative of its members. But to do so it “must
demonstrate that ‘(a) its members would otherwise have
standing to sue in their own right; (b) the interests it seeks to
protect are germane to the organization’s purpose; and (c)
neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.’” Pa.
Psychiatric Soc’y v. Green Spring Health Servs., Inc., 280 F.3d
278, 283 (3d Cir. 2002) (quoting Hunt v. Wash. State Apple
Adver. Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441
29
(1977)).
Here, the complaint contains allegations concerning the
circumstances of each of the five community organization
plaintiffs in this case. According to the complaint, each
organization has an office in Philadelphia and either has
participated in zoning disputes or sought to enforce provisions
of applicable law governing outdoor advertising in Philadelphia.
Four of the five organizations are dedicated to improving
aspects of the environment in the City and have members who
live in or own property near billboards that potentially would be
affected by the outcome of this action. The complaint also
alleges that one of these four organizations has “appeared as an
objector at the ZBA proceedings concerning 4800 Woodland
Avenue,” the site of one of the billboards implicated in this case.
App. at 11.
Despite these allegations which we accept on this appeal,
appellants fail to allege facts that demonstrate that the members
of these organizations would have standing in their own right to
bring the present lawsuit. All that we can discern from the
complaint is that the organizations have members that live in or
own property in the City – we know nothing about how the
billboards covered by the Agreement or the billboards’ alleged
noncompliance with the applicable zoning laws injures those
members. Indeed, the complaint merely states that the members
either live in or own property that “would potentially be affected
by the outcome of this action.” Id. That nonspecific statement
is nothing more than a generalized grievance insufficient under
Russell to establish standing. Without specific allegations
showing that the Agreement causes the members of the
30
community organizations injury in fact, appellants have failed
to demonstrate that its members would have standing to pursue
this case in their own right. We therefore conclude that the
community organization appellants lack standing to litigate the
present case. See Pa. Psychiatric Soc’y, 280 F.3d at 283.
V. CONCLUSION
For the foregoing reasons, we conclude that there is no
appellant with standing to bring this action and therefore we do
not pass on the merits of appellants’ claims. Yet we recognize
that although the executive branch of government must be
afforded appropriate deference in the legitimate exercise of its
powers, it might abuse those powers, and recourse to the courts
should be available to deter such conduct. We emphasize,
therefore, that our decision should not be viewed as condoning
the Solicitor’s decision to enter into the Agreement nor as
shielding the Agreement from judicial review in an action
properly brought to challenge it. Rather, we only hold that
appellants do not have standing to challenge the Agreement in
the District Court.
Our reservations concerning what happened here are
magnified by the District Court’s observation that the Billboard
Operators apparently filed Free Speech because of the need for
“a long-overdue review of the somewhat confused status of
outdoor advertising signs in the City.” App. at 104. We cannot
help but think that if the municipal regulations need revisions
the City Council (which exercises the City’s legislative powers)
31
should be the body to make the revisions, even though that
process may be cumbersome, a not uncommon product of the
operation of a democratic government.8 Indeed, the Agreement
goes so far as to provide for a schedule of annual license fees
that when paid will satisfy the license fee requirement of the
Philadelphia Code. Appellees explain that the “new annual
billboard license fee replac[es] a former licensing ordinance
struck down by the state courts more than a decade earlier.”
Appellees’ br. at 7-8. It might be thought that if any function is
legislative in nature, the setting of fees is such a function.
Our concern is in harmony with the court’s observation
in League of Residential Neighborhood Advocates, a case
greatly different from this case on the facts but nonetheless
8
In this respect this case cannot be compared to a case in
which a limited dispute over a particular billboard or perhaps
even a group of billboards is settled. No one would suggest that
a good faith settlement of such a narrow controversy is
improper. Quite to the contrary, settlement of litigation is a
favored process. See Wilcher v. City of Wilmington, 139 F.3d
366, 372 (3d Cir. 1998). Here, however, as we already have
indicated, the Agreement affects approximately 90% of the
billboards in Philadelphia. Thus, we think that appellees
overstate what they believe is the danger of this litigation when
in their brief they contend that if this case can “go forward, it
could open the floodgates to other disputes, effectively
permitting citizens to challenge the Solicitor’s authority to settle
any lawsuit and to question the terms of each settlement.”
Appellee’s br. at 24.
32
involving land usage, that “[a] settlement agreement cannot
override state law absent a specific determination that federal
law has been or will be violated,” 498 F.3d at 1053, and “[a]
federal court decree or agreement cannot be a means for state
officials to evade state law,” id. at 1055. There is no suggestion
in the record or the parties’ briefs that the Free Speech court
made such a determination with respect to federal law and we
are quite certain that it did not do so.9 Moreover, even if a
particular settlement agreement is not unreasonable, still there
is a risk that the executive branch of government by agreement
might enter into a “sweetheart” deal, whether by offering overly
generous concessions to favored parties or by using litigation as
a pretext for entering into dubious settlement agreements that
serve as a vehicle for transferring money or other benefits to
favored persons, a kind of wide-open corruption. Though we
have no reason to question the integrity of the persons involved
9
The Agreement provides that any party to it can submit it to
the court “for its approval and entry of this Consent Agreement
as a Final Order” but it further provides that, whether or not it
is submitted to the court and whether the court approves it, the
Agreement “shall nonetheless remain a fully binding and
enforceable contractual agreement between the parties.” App.
at 71-72. According to appellants in a statement that appellees
do not dispute, “[n]o party ever submitted the Settlement
Agreement to the court for approval.” Appellants’ br. at 4.
Furthermore the Free Speech docket sheets indicate that the
parties to that litigation terminated the case by filing a notice of
voluntary dismissal they had signed without participation by the
court. App. at 43.
33
in reaching the settlement leading to the Agreement, the fact is
that the corrupt things we describe do occur. See Thompson v.
City of Atlantic City, 921 A.2d 427, 430 (N.J. 2007) (“We now
hold the City’s settlement with its own mayor was so infected
with conflicts of interest that it is void as a matter of state
law.”).10
Finally, we point out that this opinion does not close the
door to future challenges to the Agreement. First, we do not
foreclose the possibility that the City Council itself, as well as
billboard operators not included in the Agreement but who
compete with the ones that are listed, have standing to challenge
the Agreement. Second, we recognize that appellants may have
standing in some capacity to assert their claims in the
Pennsylvania state courts. Indeed, considering that the present
lawsuit concerns a challenge to the Solicitor’s authority to enter
the Agreement in alleged violation of the Philadelphia Home
Rule Charter and the local ordinances, even taking into account
a federal court’s obligation to exercise its jurisdiction when
properly invoked, subject sometimes to a federal court
abstaining from deciding a case or declining to exercise
jurisdiction over state law claims ancillary to its exercise of
federal question jurisdiction, we believe that a state court might
10
In their brief appellees indicate that “[a]s the Settlement
Agreement makes clear, the Solicitor entered into the Settlement
Agreement after careful evaluation, and only after determining
the Settlement Agreement to be in the best interest of the City of
Philadelphia.” Appellees’ br. at 23. We have no reason at all to
doubt that the statement is accurate.
34
well be a more appropriate forum than a federal court for this
case. After all, the state court may have less exacting standing
requirements, the nature of the claims involve significant
questions under state law and procedures and, should the
plaintiffs in that action be successful, the relief available in the
state courts may be more feasible than that possible in the
District Court.11
Notwithstanding the circumstance that we are affirming
the dismissal, we modify the order of dismissal in one respect.
Inasmuch as we are not passing on the merits of any appellants’
claims under either federal or state law, we will modify the order
of dismissal to the end that it will be with prejudice to the
reinstitution of this action in the District Court but will be
without prejudice to institution of a similar action in the state
courts. In this regard we point out that once the District Court
determined that appellants did not have standing, it necessarily
11
Significantly, appellees in their brief contend that the “City,
through the Solicitor, acted under the clear authority granted by
the city’s Home Rule Charter in entering the Settlement
Agreement.” Appellees’ br. at 10-11. Appellants, on the other
hand, asserted in their complaint that the Agreement was
“contract zoning” which the Supreme Court of Pennsylvania has
indicated is illegal. Carlino v. Whitpain Investors, 453 A.2d
1385, 1388 (Pa. 1982). This dispute between the parties over
the scope of the Solicitor’s power under the Home Rule Charter
is precisely the type of issue that, if before us, we might certify
for resolution by the Pennsylvania Supreme Court. See 204 Pa.
Code § 29.451 (2008); 3d Cir. LAR Misc. 110.0.
35
determined that it did not have jurisdiction 12 and thus it could
not decide the merits of the case. See Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 1012 (1998)
(“Without jurisdiction the court cannot proceed at all in any
cause. Jurisdiction is power to declare the law, and when it
ceases to exist, the only function remaining to the court is that
of announcing the fact and dismissing the cause.”) (internal
quotation marks omitted); PSA, LLC v. Gonzales, 461 F. Supp.
2d 351, 359 (E.D. Pa. 2006). As modified herein with respect
to institution of a similar action in a state court, we will affirm
the District Court’s order entered on June 21, 2007, dismissing
this case with prejudice and will remand the case to the District
Court to modify its order of dismissal to conform with this
opinion. The parties will bear their own costs on this appeal.
12
See supra note 3.
36