Irish Lesbian and Gay Organization v. Giuliani, Docket No. 97-7064

Citation143 F.3d 638
Decision Date23 April 1998
Docket NumberDocket No. 97-7064
PartiesThe IRISH LESBIAN AND GAY ORGANIZATION, Plaintiff-Appellant, v. Rudolph W. GIULIANI, in his official capacity as Mayor of the City of New York; William J. Bratton, in his official capacity as Police Commissioner of the City of New York; and City of New York, Defendants-Appellees, New York County Board of the Ancient Order of Hibernians, Defendant-Intervenor-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Jacqueline C. Charlesworth, New York City (Jamie E. Shapiro, Gerard E. Harper, Hillary B. Smith, Paul, Weiss, Rifkind, Wharton & Garrison, of counsel), for Plaintiff-Appellant.

Jane L. Gordon, New York City (Paul A. Crotty, Corporation Counsel, Barry P. Schwartz, of counsel), for Defendants-Appellees.

(Ernest L. Mathews, Jr., New York City (Law Office of Thomas Gleason, of counsel)), for Defendant-Intervenor-Appellee.

Before OAKES and WALKER, Circuit Judges, and REAL, District Judge. *

Judge REAL concurs and dissents in a separate opinion.

OAKES, Senior Circuit Judge:

The Irish Lesbian and Gay Organization ("ILGO") appeals from the judgment of the United States District Court for the Southern District of New York, John G. Koeltl, Judge, dismissing their suit against the City of New York, its Mayor, and its Police Commissioner (collectively, "the Defendants"). ILGO sued the Defendants under 42 U.S.C. § 1983 for violating ILGO's free speech and equal protection rights by denying ILGO a permit to hold a parade on 5th Avenue in advance of the 1996 annual St. Patrick's Day parade put on by the New York County Board of the Ancient Order of Hibernians ("AOH"). The District Court held that ILGO's facial challenge to New York City's parade-permitting ordinance was precluded by a decision in a similar suit brought by ILGO in 1995, and that ILGO's as-applied challenges to the permit denial were either moot or barred for lack of standing. We affirm in part and reverse in part.

This appeal presents the issue whether a judgment to deny a preliminary injunction and dismiss all remaining claims before discovery or a trial on the merits can have preclusive effect if a party attempts to raise the same claim against the same parties one year later. We find that the initial judgment does preclude the later suit where the aggrieved party, here ILGO, failed to appeal the district court's dismissal of its claims after the preliminary injunction hearing. However, we also hold that ILGO's as-applied challenge is not barred by either mootness or lack of standing.

I. Background

ILGO, a group of lesbians and gay men of Irish descent, has since 1991 sought to participate in the annual St. Patrick's Day Parade ("the Parade") hosted by AOH. In 1992 and 1993 ILGO filed suit in federal district court to compel AOH to allow it to march in the Parade. These challenges were denied under reasoning anticipating the Supreme Court's decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group, 515 U.S. 557, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995). See New York County Bd. Of Ancient Order of Hibernians v. Dinkins, 814 F.Supp. 358 (S.D.N.Y.1993); Irish Lesbian & Gay Org. v. New York State Bd. Of Ancient Order of Hibernians, 788 F.Supp. 172 (S.D.N.Y.1992). ILGO has since then sought to stage a protest march on the morning of the same day and along the same route as the Parade. In every year since 1992, the police have opposed allowing ILGO to march along the Parade route prior to the Parade, and ILGO has refused to consider alternative times or venues for its march. In 1993 and 1994, ILGO attempted to stage a march without police approval, and several hundred ILGO supporters were arrested.

On December 10, 1994, ILGO applied for a formal permit to conduct a parade on 5th avenue from 42nd to 86th Street a few hours before the 1995 Parade. This application was made pursuant to New York City Administrative Code § 10-110, which requires the police commissioner to grant parade permit requests subject to two broad restrictions. The first makes it "unlawful" for the commissioner to grant a permit if "the commissioner has good reason to believe that the proposed procession ... will be disorderly in character or tend to disturb the public peace." The second forbids the use of any street which is subject to "great congestion or traffic" and is "chiefly of a business or mercantile character." Section 10-110 specifically exempts parades, such as the AOH Parade, which have been marching annually for "more than ten years prior to July seventh, nineteen hundred fourteen," from compliance with its provisions.

ILGO received no response to its 1995 permit request, and filed an Article 78 petition in New York State Supreme Court to compel the City to grant the permit and to enjoin the city from denying similar permits in future years. Defendants removed the case to federal district court. The District Court (Keenan, J.) denied ILGO's motion for a preliminary injunction and dismissed the case. ILGO appealed the denial of the preliminary injunction to this Court, which affirmed. ILGO also brought a motion under Fed. R. Civ. Proc. § 59(e) seeking clarification as to whether the District Court's judgment applied to ILGO's request for a permanent injunction concerning future permit requests. The District Court refused to amend the judgment, but stated that the decision referred only to the denial of a permit to march on St. Patrick's Day, 1995, since claims regarding future permit applications were not yet ripe. On October 11, 1995, ILGO again applied for a permit to stage an earlier parade on St. Patrick's Day, 1996, using substantially the same route as the AOH parade. The permit request was denied, as was ILGO's motion for a preliminary injunction. The District Court (Koeltl, J.) then granted the Defendants motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) on December 24, 1996, finding that ILGO's facial challenge to the City's permitting statute, section 10-110, was precluded by the 1995 litigation. With regard to ILGO's as-applied challenge, the district court held that ILGO lacked standing to sue for damages and that ILGO's requests for declaratory and permanent injunctive relief were moot. ILGO appeals that decision to this Court.

II. Standard of Review

We review de novo the district court's grant of Defendants' motion to dismiss ILGO's claims. See Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.1994). The test for evaluating a 12(c) motion is the same as that applicable to a motion to dismiss under Fed. R. Civ. Proc. 12(b)(6). We therefore must accept the allegations of ILGO's complaint as true, and draw all reasonable inferences in ILGO's favor. Sheppard, 18 F.3d at 150. We will not uphold the district court's dismissal unless "it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of [his] claim which would entitle him to relief." Id. (internal quotations omitted). This standard is "applied with particular strictness when the plaintiff complains of a civil rights violation." Branum v. Clark, 927 F.2d 698, 705 (2d Cir.1991) (citations omitted).

III. The Facial Challenge

ILGO challenges the facial constitutionality of section 10-110, arguing that the statute is overbroad and grants the police commissioner unfettered discretion to grant, deny, and delay action on permits based on the content of the parade's message or the identity of its sponsors. ILGO brings this challenge under the First and Fourteenth Amendments of the United States Constitution and under Article I, section 8 of the New York State Constitution. The court below held that this claim had been litigated in 1995, so that ILGO was precluded from raising it again under the doctrine of collateral estoppel. The court further held that any claims that had not been actually raised and litigated in 1995 were barred by the doctrine of res judicata. We agree.

The doctrines of res judicata and collateral estoppel are designed to protect "litigants from the burden of relitigating an identical issue with the same party or his privy and [to promote] judicial economy by preventing needless litigation." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979). Res judicata bars litigation of any claim for relief that was available in a prior suit between the same parties or their privies, whether or not the claim was actually litigated. Id. at 326-27 n. 5, 99 S.Ct. at 649 n. 5; see also Balderman v. United States Veterans Admin., 870 F.2d 57, 62 (2d Cir.1989). Collateral estoppel bars a party from raising an issue of law or fact in a second suit that the party had a "full and fair opportunity to litigate ... in [a] prior proceeding" and where "the decision of the issue was necessary to support a valid and final judgment on the merits" in the first action. Metromedia Co. v. Fugazy, 983 F.2d 350, 365 (2d Cir.1992).

ILGO contends that no rule of preclusion can apply to this case since the 1995 decision was a tentative ruling regarding the need for a preliminary injunction and so was not intended as a final decision on the merits. Ordinarily, findings of fact and conclusions of law made in a preliminary injunction proceeding do not preclude reexamination of the merits at a subsequent trial. See, e.g., University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1981) ("The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held. Given this limited purpose .... findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at a trial on the merits."); Goodheart Clothing Co. v. Laura Goodman Enters., 962 F.2d 268, 274 (2d Cir.1992) (declining to apply rule of preclusion to determinations made at a preliminary injunction stage because "[a] preliminary...

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