Koziara v. City of Casselberry

• Decision Date: 08 December 2004
• Docket Number: No. 03-16585.,03-16585.
• Citation: 392 F.3d 1302
• Parties: Pauline KOZIARA, Plaintiff-Appellant, v. CITY OF CASSELBERRY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

392 F.3d 1302

Pauline KOZIARA, Plaintiff-Appellant, v. CITY OF CASSELBERRY, Defendant-Appellee.

No. 03-16585.

United States Court of Appeals, Eleventh Circuit.

December 8, 2004.

Steven G. Mason, Orlando, FL, for Plaintiff-Appellant.

Erin J. O'Leary, Usheer L. Brown, Anthony Angelo Garganese, Brown, Salzman, Weiss & Garganese, P.A., Orlando, FL, for Defendant-Appellee.

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

Before BLACK, RONEY and ALARCÓN^*, Circuit Judges.

BLACK, Circuit Judge:

Rachel's Gentlemen's Club (Rachel's), a strip club in Casselberry, Florida, employed Appellant Pauline Koziara as an erotic dancer. The City of Casselberry, Appellee, revoked Rachel's adult entertainment license. Koziara challenged the constitutionality of Casselberry's applicable city code, seeking declaratory and injunctive relief. The district court held Koziara lacked standing to bring such a suit. We affirm.

I. BACKGROUND

Beginning in 1998, Koziara worked as an erotic dancer at Rachel's. On January 31, 2001, the City of Casselberry, pursuant to its city code, revoked Rachel's adult entertainment license.

Koziara sued the City in federal district court over its revocation of Rachel's license.¹ Specifically, she sought a declaratory judgment holding Casselberry City Code, §§ 14-92 and 14-93, unconstitutional under the First, Fifth, and Fourteenth Amendments to the United States Constitution. She also sought a permanent injunction prohibiting the City of Casselberry from enforcing its adult entertainment code against Rachel's and other similarly situated establishments. Koziara did not seek money damages.

Approximately two years after the initial revocation, and while this suit was pending, the City granted Rachel's a new adult entertainment license, and Koziara resumed her employment there. During the intervening two years, without missing a day of employment due to the revocation, Koziara worked as an erotic dancer at a different Rachel's club in Orlando, Florida.

Koziara and the City of Casselberry filed cross motions for summary judgment. The district court determined Koziara lacked standing, and granted summary judgment in favor of the City of Casselberry. Koziara appeals.

II. STANDARD OF REVIEW

This Court reviews the grant of summary judgment de novo. Nat'l Fire Ins. Co. of Hartford v. Fortune Constr. Co., 320 F.3d 1260, 1267 (11th Cir.2003).

III. DISCUSSION

A plaintiff seeking to invoke a federal court's jurisdiction bears the burden of establishing standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). "In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). If a plaintiff lacks standing, the "case" or "controversy" requirement of Article III, § 2 of the U.S. Constitution is not satisfied, and the case must be dismissed.

Standing has three constitutional elements. A plaintiff seeking to invoke a federal court's jurisdiction must show:

(1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 704, 145 L.Ed.2d 610 (2000); accord Bennett v. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154, 1163, 137 L.Ed.2d 281 (1997); Lujan, 504 U.S. at 560-61, 112 S.Ct. at 2136. All three elements are an "irreducible constitutional minimum," and failure to show any one results in a failure to show standing. Lujan, 504 U.S. at 560, 112 S.Ct. at 2136.

An injury in fact cannot be an abstract injury. City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983); see also ASARCO, Inc. v. Kadish, 490 U.S. 605, 616, 109 S.Ct. 2037, 2045, 104 L.Ed.2d 696(1989) ("[C]laims of injury that are purely abstract... do not provide the kind of particular, direct, and concrete injury that is necessary to confer standing to sue in the federal courts."). A plaintiff must point to some type of cognizable harm, whether such harm is physical, economic, reputational, contractual, or even aesthetic. See, e.g., Tennessee Elec. Power Co. v. Tennessee Valley Auth., 306 U.S. 118, 137-38, 59 S.Ct. 366, 369, 83 L.Ed. 543 (1939) (standing is unavailable "unless the right invaded is a legal right, — one of property, one arising out of a contract, one protected against tortious invasion, or one founded on a statute which confers a privilege"); Lujan, 504 U.S. at 562, 112 S.Ct. at 2137 ("[T]he desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing.").

"But the injury in fact test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured." Lujan, 504 U.S. at 563, 112 S.Ct. at 2137. The plaintiff must be "directly" affected apart from her "special interest in the subject." Id. at 563, 112 S.Ct. at 2138. To be particularized, "we mean that the injury must affect the plaintiff in a personal and individual way." Id. at 561, 112 S.Ct. at 2136 n. 1. If the plaintiff is merely a "concerned bystander," then an injury in fact has not occurred. See Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 473, 102 S.Ct. 752, 759, 70 L.Ed.2d 700 (1982) ("The federal courts have abjured appeals to their authority which would convert the judicial process into `no more than a vehicle for the vindication of the value interests of concerned bystanders.'") (citation omitted).

Moreover, a plaintiff seeking only injunctive or declaratory relief must prove not only an injury, but also "a `real and immediate threat' of future injury in order to satisfy the `injury in fact' requirement." Nat'l Parks Conservation Ass'n v. Norton, 324 F.3d 1229, 1241 (11th Cir.2003) (citations omitted); Lyons, 461 U.S. at 111, 103 S.Ct. at 1670 (explaining "[a]bsent a sufficient likelihood that he will again be wronged in a similar way, Lyons is no more entitled to an injunction than any other citizen of Los Angeles"); see also Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1274 (11th Cir.2003) (to establish Article III standing to seek prospective injunctive or declaratory relief, the "Supreme Court has held that where a plaintiff seeks these types of prospective relief, it must demonstrate a `real and immediate threat' of future injury to satisfy the `injury in fact' requirement") (citations omitted). For a plaintiff seeking prospective relief to have standing, he "must show a sufficient likelihood that he will be affected by the allegedly unlawful conduct in the future." Johnson v. Bd. of Regents, 263 F.3d 1234, 1265 (11th Cir.2001); see also Lyons, 461 U.S. at 105, 103 S.Ct. at 1667 ("That Lyons may have been illegally choked by the police on October 6, 1976, while presumably affording Lyons standing to claim damages against the individual officers and perhaps against the City, does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally...