Lebron v. National Railroad Passenger Corp (Amtrak)

MAHONEY, Circuit Judge:

Plaintift-Counter-Defendant-Appellee Michael A. Lebrón petitions for rehearing of this Court’s decision in Lebron v. National Railroad Passenger Corp. (Amtrak), 69 F.3d 650 (2d Cir.1995) (“Lebrón /”), familiarity with which is assumed. We deny the petition for rehearing, but amend Lebrón I as follows:

1. The sentence at 658, second column, line eighteen, is deleted.

2. The sentence at 659, first column, line three, is amended to read as follows:

Because Lebrón insisted that TDI display his proposed advertisement only on the Spectacular, his attempt to attack Amtrak’s policies regarding the acceptance of advertisements in Penn Station generally, rather than on the Spectacular, amounts, in substance, to a facial challenge to those policies as they might be applied to advertisements .other than Lebron’s and to locations not at issue.

3. The two sentences at 660, first column, lines 35-40, are replaced by the following:

We reverse the judgment of the district court and remand for consideration of Le-bron’s contract claim and TDI’s counterclaim for a declaratory judgment that it is entitled to terminate the Lease. Because initial subject matter jurisdiction over Le-bron’s federal claim is now clear, and a full trial has been “conducted on an expedited basis, upon written submissions,” Lebrón I, 811 F.Supp. [993] at 994, the interests of judicial economy and fairness to the parties counsel that this litigation be completed in federal court.

We note the assertion in Chief Judge Newman’s dissent from this disposition of the petition for rehearing that we now approve an inconsistent Amtrak policy because, “as the District Court found, advertisements falling within a broad category of political messages had been displayed in Penn Station.” Judge Leval concluded only that a handful of the advertisements shown in Penn Station over the years had been “arguably ‘political.’” Lebron v. National R.R. Passenger Corp. (Amtrak), 811 F.Supp. 993, 1004 (S.D.N.Y.1993) (referring to advertisements by New York Department of the Environment, New York Department of Commerce, a foundation for muscular dystrophy, and Plain Truth magazine; and public service advertisements concerning “subjects such as the homeless, the environment, drunk driving, AIDS awareness, health issues, and race relations”). Amtrak is probably entitled to consider such advertisements as “public service announcements” within the meaning of its standard licensing agreement. See Lebron I, 69 F.3d at 654. In any event, “Amtrak’s billboard space in Pennsylvania Station, even if used in the past for ads of a public service nature, has not become a forum for ads of such pointed political content as Lebron’s attack on the makers of Coors beer for promoting ‘the Far Right’s political agenda.’ ” Lebron v. National R.R. Passenger Corp., 12 F.3d 388, 394 (2d Cir.1993) (Newman, C.J., dissenting), rev’d and remanded, — U.S. -, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995).

We rely upon Lebrón I with respect to our analysis of the forum issue. See id., at 655-58.