Goode v. City of Philadelphia
| Citation | 539 F.3d 311 |
| Decision Date | 12 August 2008 |
| Docket Number | No. 07-3164.,07-3164. |
| Parties | 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 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. |
| Court | U.S. Court of Appeals — Third Circuit |
Charles C. Sweedler (argued), Levin, Fishbein, Sedran & Berman, Philadelphia, PA, Attorneys for Appellants.
Elizabeth S. Campbell, Barbara W. Mather (argued), A. Michael Pratt, T. Joel Zuercher, Philadelphia, PA, Attorneys for Appellees.
Before: AMBRO, CHAGARES, and GREENBERG, Circuit Judges.
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 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.
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 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 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 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 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 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.
Appellants pled that the District Court had federal jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(3) and (4) and 42 ...
To continue reading
Request your trial
-
Mccauley v. Univ. Of The V.I.
...the factual elements underlying the District Court's determination of standing on a clear error standard.” Goode v. City of Philadelphia, 539 F.3d 311, 316 (3d Cir.2008). 5. McCauley's Complaint explicitly alleges the chilling of student speech as a harm: The [Code] has a chilling effect on......
-
Berg v. Obama
......Berg. . John P. Lavelle, Ballard, Spahr, Andrews & Ingersoll, LLP, Philadelphia, PA, for Barack Obama. . MEMORANDUM & ORDER . SURRICK, District Judge. . . ... See Goode v. City of Phila., 539 F.3d 311, 327 (3d Cir.2008) ("[O]nce the District Court determined that ......
-
Nat'l Ass'n for the Advancement of Multijurisdictional Practice v. Castille
......Michael Daley, Supreme Court of PA, Philadelphia, PA, for Defendants. MEMORANDUM McHUGH, District Judge. Summary of the Facts This lawsuit is a ...City of LA v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (“Past exposure to ...The situation here is distinguishable from the case on which Defendants rely, Goode v. City of Philadelphia, 539 F.3d 311 (3d Cir.2008). In Goode, the Third Circuit denied ......
-
N.Y. State Psychiatric Ass'n, Inc. v. Unitedhealth Grp., Uhc Ins. Co., United Health-Care Ins. Co. of N.Y., United Behavioral Health
...... the participation of individual members in the lawsuit.” Rent Stabilization Ass'n of City of New York v. Dinkins, 5 F.3d 591, 596 (2d Cir.1993) (quoting Hunt v. Washington State Apple ... See Goode v. City of Philadelphia, 539 F.3d 311, 325 (3d Cir.2008). The association cannot derive standing ......