Elend v. Basham

• Decision Date: 06 December 2006
• Docket Number: No. 06-10705.,06-10705.
• Parties: Adam ELEND, Jeff Marks, Joe Redner, Plaintiffs-Appellants, v. W. Ralph BASHAM, in his official capacity as Director of the U.S. Secret Service, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

471 F.3d 1199

Adam ELEND, Jeff Marks, Joe Redner, Plaintiffs-Appellants, v. W. Ralph BASHAM, in his official capacity as Director of the U.S. Secret Service, Defendant-Appellee.

No. 06-10705.

United States Court of Appeals, Eleventh Circuit.

December 6, 2006.

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Thomas C. Little, Clearwater, FL, for Plaintiffs-Appellants.

Rachel Elise Fugate, Gregg D. Thomas, Thomas & LoCicero, PL, Tampa, FL, Eric Fleisig-Greene, Mark B. Stern, U.S. Dept. of Justice, Civ. Div., App. Staff, Washington, DC, for Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before CARNES and MARCUS, Circuit Judges, and JORDAN,^* District Judge.

MARCUS, Circuit Judge:

At issue today is whether the district court erred in dismissing a First Amendment claim for declaratory and injunctive relief on standing and ripeness grounds. After thorough review, we affirm because the requested relief concerns wholly prospective conduct for which the details of time, location, audience, and the nature of the protest activity are utterly lacking. Quite simply, this case is not justiciable.

I.

The basic facts and procedural history are straightforward. Plaintiffs Adam Elend, Jeff Marks, and Joe Redner allege that their First Amendment rights were violated on November 2, 2002, when they attempted to protest at a political rally attended by President Bush at the University of South Florida (USF) Sun Dome.

Marks and Redner held up placards,¹ while Elend videotaped the event and distributed copies of certain Supreme Court decisions pertaining to the First Amendment. Plaintiffs began to conduct this activity on a median adjacent to a parking lot on the USF campus, approximately 150 feet from the nearest Sun Dome entrance and 30 feet from event attendees who were waiting in line. Soon after the commencement of this activity, USF police officers told the Plaintiffs that they would have to stand in the "First Amendment zone," an area estimated to be one quarter of a mile away from the Sun Dome. The "protest zone" consisted of a metal fence patrolled by law enforcement personnel, some of whom were on horseback. Plaintiffs contend that others carrying placards and signs indicating support of President George Bush or Governor Jeb Bush were not asked to move to the protest zone.

Plaintiffs explained to USF officers their belief that the creation of such a zone unconstitutionally restricted their freedom of speech. At that point, they were approached by a purported agent of the Sun Dome, Kelly Hickman, who also requested they move to the protest zone. When Plaintiffs refused to relocate, Hillsborough County Sheriff's deputies arrested them for "trespass after warning," Fla. Stat. § 810.09 (2006). Plaintiffs were released and the charges dropped after it was determined that no agent of the Sun Dome had the requisite authority to provide a warning, as required by state trespass law.²

Invoking federal question jurisdiction under 28 U.S.C. §§ 1331 and 1343, Plaintiffs commenced this lawsuit in the United States District Court in the Middle District of Florida in August 2003. The named defendants were Sun Dome, Inc.; the USF Board of Trustees, "in their representative capacity" for USF; W. Ralph Basham in his official capacity as Director of the U.S. Secret Service [hereinafter "Secret Service"]; and Cal Henderson, the Sheriff of Hillsborough County in his official capacity. Plaintiffs sought damages against Sun Dome and USF, through 42 U.S.C. §§ 1983, 1985, and 1988, for violations of their First and Fourteenth Amendment rights. Plaintiffs also sought declaratory relief for the allegedly unconstitutional "acts, practices, and customs" of defendants and an injunction against "any further constitutional violations." Their claims against the Secret Service were made pursuant to 5 U.S.C. § 702, which removes governmental immunity from suits seeking declaratory or injunctive relief against federal agencies or employees acting in their official capacity. Notably, Plaintiffs did not seek any monetary damages from the Secret Service.

Soon thereafter, the Secret Service moved to dismiss the claim for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, and, in July 2004, the district court granted the motion because the complaint failed to "allege that the plaintiffs desire to engage further in the type of activities that are the subject of this action." Plaintiffs then filed a second verified amended complaint in response to the district court's observation that the first complaint did not contain specific allegations of future injury. In the amended complaint, Plaintiffs alleged that they "fully intend to peacefully express their viewpoints in the future in a manner similar to their activities on November 2, 2002 in concert with presidential appearances at the USF Sun Dome and at other locations around the country." Verified Second Amended Complaint, para. 46. The complaint contained no further explication of the time, location, audience, or nature of protest activity contemplated.

The Secret Service again moved to dismiss on justiciability grounds. Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the district court again dismissed Plaintiffs' claims against the Secret Service on May 18, 2005, holding that Plaintiffs' claims that they would protest in a similar manner in the future were too speculative to satisfy the requirements of both standing and ripeness. The court reasoned that the Plaintiffs could wait until it became known when and where they would protest before seeking declaratory and injunctive relief.

On August 24, 2005, Plaintiffs sought leave to amend the complaint still again in order to add the Hillsborough County Sheriff's Department and individual employees, the USF Police Department and individual employees, and Sun Dome employees "who actively participated in the incident." Sun Dome and USF moved for summary judgment on the claims against them. The district court granted summary judgment for the remaining defendants Sun Dome and USF on the basis of Eleventh Amendment immunity because they were state actors and because of the lack of evidence that Sun Dome had any policy or custom that violated the First Amendment. The district court also determined the claims against Sun Dome and USF to be nonjusticiable, again on standing and ripeness grounds. Finally, the district court denied Plaintiffs' motion for leave to amend because it was untimely, having been filed after the scheduling order deadline had passed and because no good cause was shown.

Plaintiffs filed a timely notice of appeal, urging that 1) the district court erred in dismissing the Secret Service as a defendant on justiciability grounds, and 2) the district court also erred in denying Plaintiffs' motion for leave to file an additional amended complaint. Subsequent to the filing of the notice of appeal, Plaintiffs, Sun Dome, and the USF Board of Trustees agreed to the voluntary dismissal of the appeal as to all other appellees, leaving the Secret Service as the sole appellee and only the first issue for us to resolve.

II.

We review de novo questions concerning our subject matter jurisdiction, including standing and ripeness. See Fla. Pub. Interest Research Group Citizen Lobby, Inc. v. EPA, 386 F.3d 1070, 1082 (11th Cir.2004); London v. Wal-Mart Stores, Inc., 340 F.3d 1246, 1251 (11th Cir.2003).

Standing and ripeness present the threshold jurisdictional question of whether a court may consider the merits of a dispute. See Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005) ("In the absence of standing, a court is not free to opine in an advisory capacity about the merits of a plaintiff's claims."); Nat'l Adver. Co. v. City of Miami, 402 F.3d 1335, 1339 (11th Cir.2005) ("Strict application of the ripeness doctrine prevents federal courts from rendering impermissible advisory opinions and wasting resources through review of potential or abstract disputes."). Both standing and ripeness originate from the Constitution's Article III requirement that the jurisdiction of the federal courts be limited to actual cases and controversies. Flast v. Cohen, 392 U.S. 83, 94-101, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) (discussing the origins of the standing doctrine); Abbott Labs. v. Gardner, 387 U.S. 136, 148-149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) (discussing the origins of the ripeness doctrine). This jurisdictional limitation "defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded." Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984); see also Socialist Workers Party v. Leahy, 145 F.3d 1240, 1244 (11th Cir.1998).

This case presents an instance of the doctrinal overlap between standing and ripeness analysis. "Few courts draw meaningful distinctions between the two doctrines; hence, this aspect of justiciability is one of the most confused areas of the law." Wilderness Soc'y v. Alcock, 83 F.3d 386, 389-90 (11th Cir.1996). The distinction traditionally made, however, is that standing deals with which party can appropriately bring suit, while ripeness relates to the timing of the suit. See id. at 390. Thus, there may be standing without ripeness, as when a party alleges a concrete injury but has not exhausted prescribed administrative remedies, see, e.g., Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 82 L.Ed. 638 (1938); or there may be ripeness without standing, as when an injury is fully formed, but the remedy sought would simply not redress the harm, see, e.g., Linda R.S. v. Richard D., 410 U.S. 614, 617-18, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973). There may also be ripeness without standing when an injury is fully formed but the plaintiff simply asserts the claims of third parties. See, e.g., Whitmore v....