FILED
NOT FOR PUBLICATION MAY 16 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JEFFREY HERSON; EAST BAY No. 10-16445
OUTDOORS, INC., a California
corporation, D.C. No. 3:09-cv-04187-MHP
Plaintiffs - Appellants,
MEMORANDUM *
v.
CITY OF SAN CARLOS,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding
Argued and Submitted May 9, 2011
San Francisco, California
Before: THOMAS, McKEOWN, and MURGUIA, Circuit Judges.
Jeffrey Herson and East Bay Outdoor, Inc. (collectively “Herson”) appeal
the district court’s grant of summary judgment in his 42 U.S.C. § 1983 action
alleging that the City of San Carlos violated his First Amendment right to freedom
of expression by denying his building permit application. We affirm the district
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
court. Because the history of the case is familiar to the parties, we need not
recount it here.
To establish standing under Article III of the United States Constitution, a
plaintiff must demonstrate: (1) an injury in fact; (2) a causal connection between
the injury and the defendant’s conduct; and (3) a likelihood that the injury can be
redressed by a favorable court decision. Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992). A plaintiff challenging the denial of a permit application
under a city ordinance fails to establish redressability if the permit was also denied
under an alternative, constitutional provision of the ordinance. See Get Outdoors
II, LLC v. City of San Diego, 506 F.3d 886, 893 (9th Cir. 2007). As such, a
plaintiff must challenge every restriction under which the application was denied in
order to establish redressability. Id.
Herson waived his challenge of the billboard restriction by not raising it in
his opening brief on appeal. Miller v. Fairchild Industries, Inc., 797 F.2d 727, 738
(9th Cir. 1986); see also McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th Cir. 2009)
(raising an issue at oral argument is insufficient to avoid waiver if it was not raised
in the briefs). Herson has therefore failed to establish that his injury is redressable
and he lacks standing to pursue his claim.
AFFIRMED.
-2-