Focus on the Family v. Pinellas Suncoast Transit Authority

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-14442 September 9, 2003
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 01-00071-CV-T-17-EAJ

FOCUS ON THE FAMILY,

Plaintiff-Appellant,

versus

PINELLAS SUNCOAST TRANSIT
AUTHORITY,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 9, 2003)

Before MARCUS and WILSON, Circuit Judges, and RESTANI*, Judge.

MARCUS, Circuit Judge:

*
Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by
designation.
 Focus on the Family (“Focus”) appeals from the district court’s order

entering final summary judgment in favor of the Pinellas Suncoast Transit

Authority (“PSTA”). Focus has sued the PSTA, advancing both a facial and an as-

applied First Amendment challenge to a contract between PSTA and Eller Media,

Inc. (“Eller”) that allegedly barred Focus from advertising on bus shelters in

Pinellas County, Florida its “Love Won Out” convention, a gathering that it

planned to hold in the Tampa/Clearwater area during early 2000. This case

requires us to resolve several jurisdictional issues concerning Article III standing,

methods of proving causation and section 1983’s “under color of state law”

requirement. After thoroughly considering the parties’ briefs and the relevant case

law, we conclude that Focus has standing to advance its First Amendment claims

and that appellant has demonstrated the existence of a genuine factual issue

regarding the satisfaction of § 1983’s state action requirement. Because the

district court erred in holding contrarily, we vacate its order entering final

summary judgment and remand for further proceedings consistent with this

opinion.

I

2
 The essential facts are these. PSTA is a governmental entity created by the

State of Florida, the sole responsibility of which is the provision of public

transportation within Pinellas County. In February, 1995, PSTA entered into an

advertising transit shelter agreement (the “agreement” or the “contract”) with

Patrick Media Group (“Patrick”), pursuant to which Patrick was permitted to

construct and sell advertising space on bus shelters along PSTA transit routes. In

1996, Patrick was sold to Eller, which assumed Patrick’s rights and obligations

under the agreement.1 At the agreement’s inception, roughly 150 PSTA-owned

shelters already lined these bus routes (although these shelters do not feature

advertising), and the agreement authorizes Eller to build no more than 500

additional shelters. The contract says that the structures are to be owned and

managed by Eller, but the advertising revenues generated are to be shared between

Eller and PSTA on a percentage basis. Moreover, Eller is required to seek PSTA’s

approval before constructing any shelter, and PSTA retains the right to require

Eller to remove or relocate a given shelter. PSTA also specifies where on the

structure advertising may appear. The agreement further provides that upon its

1
Although the agreement initially bound Patrick, for the sake of convenience we will
substitute Eller for Patrick in discussing the contract’s terms.

3
expiration PSTA will have the option of purchasing the shelters for their fair

market value.

Most importantly from the perspective of the instant litigation, although

Eller is delegated responsibility for initially approving or disapproving proposed

advertising, PSTA retains the right to review all advertisements that Eller proposes

to place on the shelters and to require the removal of any advertisement that does

not meet its approval.

Section V of the agreement sets forth numerous restrictions pertaining to the

content of such advertising. This portion of the agreement lies at the heart of the

case, and as such it is worth reproducing in its entirety. It provides:

A. PSTA reserves the right to approve all advertising, exhibit
material or announcements and the manner of their
presentation, which approval shall not be unreasonably
withheld.

B. No advertising promoting the sale of alcohol, tobacco, or
political or socially embarrassing subject shall be allowed in
the bus shelters.

C. No advertisement, exhibit material or announcement shall be
accepted by [Eller] for display in the bus shelters which is to
the knowledge of [Eller]:

1. False, misleading or deceptive; or
2. Clearly defamatory or likely to hold up to scorn or
ridicule any person or group of persons; or
3. Obscene or pornographic; or

4
 4. In advocacy of imminent lawlessness or unlawful violent
action; or
5. All or any combination of the foregoing.

D. Before displaying any advertising, exhibit material or
announcement which [Eller] reasonably believes may be
objectionable to PSTA, [Eller] shall first submit the material to
PSTA for PSTA’s review. PSTA shall have the right to deny
the use of any transit shelter advertising space for any material
which it reasonably determines to be objectionable.

E. Reasonable proof or clarification of statements contained in an
advertisement, exhibit material or announcement may be
required by PSTA as a condition of use or continued use of
transit shelter advertising space.

F. Advertisements of a political or editorial or election nature are
prohibited.

G. [Eller] shall immediately remove from any transit shelter, at
[Eller’s] sole cost and expense, upon written demand of PSTA
or its authorized representative, any display, sign, poster or
other advertising material, including advertising content, which
does not meet with PSTA’s reasonable approval. . . . .

Notably, the agreement does not further define any of these prohibited

categories of advertising, including such terms as: “political,” “socially

embarrassing,” “false,” “misleading,” “deceptive,” “defamatory,” “likely to hold

up to scorn or ridicule any person or group of persons,” “obscene,”

“pornographic,” or “objectionable.” Nor are there any other written guidelines

providing any meaning for these terms. However, when a proposed advertisement

5
plainly falls within one of these categories -- e.g., a beer ad -- Eller is not required

to consult PSTA before rejecting it. In other words, if an advertisement clearly is

impermissible under PSTA’s guidelines, then Eller may simply reject it out of

hand. If the acceptability of the advertisement is a closer question, then Eller must

consult PSTA, which makes the final decision whether to permit the

advertisement. Plainly, under the regime PSTA has final decision-making

authority regarding the approval of any advertisement.

In January, 2000, Eller’s Miami office was contacted by a representative

from Focus on the Family, an evangelical organization dedicated to the

preservation of what it believes to be the appropriate American family structure.

Among Focus’s organizational convictions is that homosexuality is a preventable

condition. Consistent with this view, in early 2000 Focus held a conference in the

Tampa/Clearwater area that it denominated “Love Won Out.” Appellant wished to

publicize the conference through advertising, and its call to Eller was a product of

this desire. Specifically, Focus wanted to place on several bus shelters in Pinellas

County advertisements featuring a close-up picture of a human face, with the

words “Love Won Out: Addressing, Understanding and Preventing

Homosexuality in Youth” printed over the image.

6
 Focus alleges that Becky Blair, its employee in charge of advertising for the

conference, faxed a copy of the advertisement to Norma Berger, an Eller

representative, and that Eller approved it. PSTA concedes that Eller sent Focus its

standard contract and that appellant signed this document, although no Eller

representative ever signed it. Blair subsequently sent the artwork for the poster to

a printing company. After the advertisements were completed, Focus asserts,

Berger contacted Blair and informed her that the Love Won Out advertisements

had been rejected because the “Tampa Transit Authority” did not like the word

“homosexuality.” Some time later, appellant continues, Karen Eaglin, the director

of the conference, contacted Frank Bitetto, another Eller representative. Bitetto

similarly told Eaglin that the advertisements had been rejected by PSTA because it

was overly political. Focus alleges that Eaglin asked to speak with Bitetto’s

supervisor, Shawn Ulrich, who informed her that Bitetto (and, by implication,

Berger) was mistaken, and that it was Eller that rejected the advertisements.

PSTA says that it was Wayne Mock, the General Manager of Eller’s

Clearwater Office,2 who decided not to run the Love Won Out advertisements.

Appellee says that Ulrich and Bitetto presented the advertisements to Mock

2
This is the title that PSTA says Mock possessed. Focus refers to him as the President of
Eller’s Florida region.

7
because they were concerned with their content, and that Mock decided not to

approve it because the notion that homosexuality is preventable is highly

controversial and potentially offensive. Mock said during his deposition that

although he believed that appellant’s advertisements were prohibited under the

PSTA-Eller contract, his decision was not based on that agreement but instead was

predicated entirely on Eller’s internal policies and its standard contract (which, to

reiterate, Focus signed but Eller did not). This account was corroborated by Roger

Sweeney, PSTA’s Executive Director, who testified that PSTA was not involved

in the decision to reject Focus’s advertisements. Following the rejection of the

Love Won Out advertisements, Eller returned Focus’s payment for the ads and the

copies of the advertisements themselves.

Based on this pattern of dealing, Focus first brought suit against Eller and

PSTA in the state Circuit Court for the Sixth Judicial Circuit, in Pinellas County,

under Florida’s Public Records Law. Specifically, Focus sought to compel the

disclosure of records relating to Eller’s management of its advertising space on

PSTA’s shelters. Although the Public Records Law is inapplicable to private

entities, appellant argued that documents in Eller’s possession pertaining to the

sale of advertisements on the shelters were subject to disclosure because under the

agreement Eller and the state (through PSTA), were parties to a symbiotic

8
relationship. In other words, Focus argued that Eller possessed sufficient

characteristics of a state actor to bring it within the ambit of the Public Records

Law. The state circuit court rejected this argument, holding that Eller and PSTA

were legally autonomous entities and that Eller was not covered by the Florida

law. See Focus on the Family, Inc. v. Eller Media Co., No. 00-001419CI-19 (Fla.

Cir. Ct. Apr. 6, 2000) (order denying amended emergency petition to compel the

disclosure of public records). The Second District Court of Appeal affirmed. See

Focus on the Family, Inc. v. Eller Media Co., No. 2D00-1979 (Fla. 2 nd Dist. Ct.

App. Apr. 6, 2001) .

Subsequently, on January 11, 2001, Focus filed this action against PSTA

pursuant to 42 U.S.C. § 1983 in the United States District Court for the Middle

District of Florida. It alleged that the rejection of its Love Won Out

advertisements violated the First Amendment’s free speech guaranty. Specifically,

Focus challenged the PSTA-Eller contract both on its face and as applied to its

advertisements. It sought (1) a declaration that the agreement was

unconstitutional; (2) an injunction against the continued enforcement of the

agreement; and (3) an injunction requiring PSTA to run its Love Won Out

advertisements. After discovery had proceeded, the parties filed cross-motions for

summary judgment. Focus sought summary judgment on its facial challenge

9
only, 3 while PSTA sought summary judgment on both of appellant’s challenges to

the agreement.

Although the district court denied Focus’s motion, on August 2, 2002 it

granted final summary judgment in favor of PSTA. It held that § 1983’s state

action requirement was unsatisfied, as it was Eller and not PSTA that rejected

appellant’s advertisements. The district court also held that Focus lacked Article

III standing to challenge the PSTA-Eller contract because it had suffered no harm

as a result of that agreement. Nor, the district court found, did Focus establish a

likelihood of future harm as a result of the agreement. Since it found that Focus

had not advanced a viable § 1983 claim, the district court never addressed the

merits of appellant’s First Amendment arguments. This appeal ensued.

II

On appeal, Focus argues that PSTA’s execution of the agreement with Eller

is itself state action, and that the agreement consequently can be challenged

pursuant to § 1983. Focus further contends that Section V of the agreement is

facially unconstitutional because it is a viewpoint-based restriction on speech and

3
Focus opted not to seek summary judgment on its as-applied challenge because it
believed that genuine factual issues remained concerning whether the agreement was responsible
for its harm.

10
because it is a vague and overbroad prior restraint. Finally, appellant argues that

there remain disputed issues of material fact concerning whether PSTA was

involved in the rejection of its advertisements. Focus argues that these questions

bear on the merits of its as-applied challenge, and that as such the district court’s

entry of summary judgment as to this claim was inappropriate. It asserts, however,

that the existence of these disputed factual issues does not preclude the entry of

summary judgment in its favor on the facial challenge.

PSTA responds by defending the district court’s state action and standing

determinations. It further argues that the court’s entry of summary judgment

should be affirmed because Focus’s alleged constitutional deprivation was not

caused by a PSTA policy or custom, and as such no viable § 1983 claim lies in this

case. In addition, it says that even if we reach the merits of appellant’s First

Amendment claim, that claim is without merit because the bus shelters are non-

public fora -- indeed, are private property. Finally, it argues that because Focus

failed to join Eller as an indispensable party under Fed. R. Civ. P. 19, the action

must be dismissed anyway.

We review de novo a summary judgment ruling, applying the same legal

standard used by the district court. See Johnson v. Bd. of Regents of Univ. of Ga.,

263 F.3d 1234, 1242-43 (11th Cir. 2001). In conducting this examination, we view

11
the materials presented and all factual inferences in the light most favorable to the

non-moving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct.

1598, 1608, 26 L. Ed.2d 142 (1970). Summary judgment is appropriate where

“there is no genuine issue as to any material fact” and “the moving party is entitled

to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The burden of

demonstrating the satisfaction of this standard lies with the movant, who must

present “pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any” that establish the absence of any genuine,

material factual dispute. Id.

A. Article III Standing

Although the district court analyzed standing after it discussed the state

action requirement, we address it at the outset of our analysis because it directly

implicates federal subject matter jurisdiction. See National Parks Conservation

Ass’n v. Norton, 324 F.3d 1229, 1242 (11th Cir. 2003) (“[B]ecause the

constitutional standing doctrine stems directly from Article III’s ‘case or

controversy’ requirement . . . , this issue implicates our subject matter jurisdiction,

and accordingly must be addressed as a threshold matter.” (citing Vermont Agency

12
of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771, 120 S. Ct.

1858, 1861-62, 146 L. Ed. 2d 836 (2000) and

Juidice v. Vail, 430 U.S. 327, 331, 97 S. Ct. 1211, 1215, 51 L. Ed. 2d 376

(1977)));

see also Florida Ass’n of Rehab. Facilities, Inc. v. Fla. Dep’t of Health & Rehab.

Servs., 225 F.3d 1208, 1227 n.14 (11th Cir. 2000) (“[M]ootness -- like standing . . .

-- raises . . . [a] basic question of jurisdiction that cannot be waived and goes to the

very heart of the ‘case or controversy’ requirement of Article III. At least in this

context, therefore, questions of mootness ought to be resolved first.”) (emphasis

added).

To borrow from our discussion in National Parks Conservation Ass’n:

In Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61,
112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992), the
Supreme Court set forth the test for Article III standing.
First, the plaintiff must have suffered an “injury in fact,”
or “an invasion of a legally protected interest which is . .
. concrete and particularized.” Id. at 560, 112 S. Ct. at
2136. Second, the plaintiff must demonstrate the
existence of a causal connection between the injury and
the conduct complained of, see id., and finally, it is
necessary to establish that it is “‘likely,’ as opposed to
merely ‘speculative,’ that the injury will be ‘redressed by
a favorable decision.’” Id. at 561, 112 S. Ct. at 2136
(quoting Simon v. Eastern Ky. Welfare Rights Org., 426
U.S. 26, 41-42, 96 S. Ct. 1917, 1926, 48 L. Ed. 2d 450
(1976)). Furthermore, where a plaintiff seeks

13
 prospective injunctive relief, it must demonstrate a “real
and immediate threat” of future injury in order to satisfy
the “injury in fact” requirement. City of Los Angeles v.
Lyons, 461 U.S. 95, 103-04, 103 S. Ct. 1660, 1665-66,
75 L. Ed. 2d 675 (1983); Wooden v. Bd. of Regents, 247
F.3d 1262, 1283-84 (11th Cir. 2001).

324 F.3d at 1241.

In this case, the district court said that both the injury in fact and causation

(or “traceability”) requirements were unfulfilled. It also determined that the

“likelihood of future injury” requirement set forth in Lyons, 461 U.S. at 111, 103

S. Ct. at 1670, was unsatisfied. In reality, however, the court’s analysis of each of

these factors was concerned with the perceived lack of a causal connection

between the PSTA-Eller agreement and the rejection of the Love Won Out

advertisements.

Preliminarily, we believe the district court erred to the extent it concluded

that Focus had not suffered a concrete, particularized injury in fact. The district

court’s determination that the “injury in fact” requirement was unsatisfied because

Focus “failed to present any evidence that it was injured as a result of the

agreement” plainly conflates the first and second prongs of Lujan. Moreover, it

implicitly recognizes, as it must, that Focus was in fact harmed. Simply stated, it

is undisputed that appellant was unable to advertise its conference, and it

14
expended time, energy and money in producing advertisements following Eller’s

initial approval of the advertisements that ultimately went unused. Moreover, it

seems likely that appellant’s conference was less well attended than it would have

been had it been able to promote the gathering on Eller’s bus shelters. The first

prong of Lujan is easily satisfied.

As for Lujan’s second prong -- the requirement of a causal connection

between the injury and the conduct complained of -- the district court held simply

that “[h]ere, Eller denied Plaintiff’s advertisement[s], not [PSTA]. [Focus] has

presented no evidence that, had [PSTA] been given the opportunity, it would have

denied the agreement based on the terms of the agreement.” Importantly, in

evaluating Article III’s causation (or “traceability”) requirement, we are concerned

with something less than the concept of “proximate cause.” See Loggerhead

Turtle v. City Council, 148 F.3d 1231, 1251 n.23 (11th Cir. 1998). As we noted in

Loggerhead Turtle, “no authority even remotely suggests that proximate causation

applies to the doctrine of standing.” Id. Instead, even harms that flow indirectly

from the action in question can be said to be “fairly traceable” to that action for

standing purposes. See id. at 1250-51; Vermont Agency of Natural Res., 529 U.S.

at 771, 120 S. Ct. at 1861 (“[To prove standing a plaintiff] must establish

causation -- a ‘fairly ... trace [able]’ connection between the alleged injury in fact

15
and the alleged conduct of the defendant.” (quoting Simon, 426 U.S. at 41, 96 S.

Ct. at 1926)); The Pitt News v. Fisher, 215 F.3d 354, 357 (3d Cir. 2000).

We disagree with the district court’s conclusion that Article III’s causation

requirement was unsatisfied in this case. In reaching this determination, we note

again that for standing purposes Focus is not required to prove causation beyond a

reasonable doubt or by clear and convincing evidence. Instead, the existence of

record evidence of PSTA’s direct involvement in the rejection of appellant’s

advertisements is sufficient to satisfy Article III’s causation prong. As the

Supreme Court has observed:

The essence of the standing question, in its constitutional
dimension, is “whether the plaintiff has ‘alleged such a
personal stake in the outcome of the controversy’ (as) to
warrant his invocation of federal-court jurisdiction and
to justify exercise of the court’s remedial powers on his
behalf.” The plaintiff must show that he himself is
injured by the challenged action of the defendant. The
injury may be indirect, but the complaint must indicate
that the injury is indeed fairly traceable to the
defendant’s acts or omissions.

Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 260-61,

97 S. Ct. 555, 561, 50 L. Ed. 2d 450 (1977) (quoting Warth v. Seldin, 422 U.S.

490, 498-99, 95 S. Ct. 2197, 2205, 45 L. Ed. 2d 343 (1975) and citing United

16
States v. SCRAP, 412 U.S. 669, 688, 93 S. Ct. 2405, 2416, 37 L. Ed. 2d 254

(1973)) (other citations omitted) (emphasis added).

To this end, Eaglin testified that Bitetto explicitly told her that the Love

Won Out advertisements had been rejected because the “Tampa Transit Authority”

did not like the word “homosexuality.” Likewise, Blair testified that Berger told

her that the advertisements had been rejected because the “‘Tampa Transit

Authority” objected to the word ‘homosexuality.’” Furthermore, Mock, an Eller

General Manager, expressly testified that the Love Won Out advertisements were

prohibited under the PSTA-Eller agreement because they were, in his estimation,

defamatory and likely to hold homosexuals up to scorn or ridicule. However, he

suggested that the advertisements were not rejected based on this contract, but

instead on Eller’s own prohibition against potentially offensive and misleading

advertising. Similarly, Sweeney, PSTA’s Executive Director, opined that the Love

Won Out advertisements could be considered socially embarrassing, false,

misleading or deceptive, and conceded that such ads were specifically prohibited

under the agreement.

Thus, not only is there direct evidence that the advertisements were rejected

based on Section V of the PSTA-Eller agreement, but furthermore the

uncontroverted testimony in this case is that Focus’s advertisements were rejected

17
for having characteristics of exactly the type that the PSTA-Eller contract

expressly deemed unacceptable. This testimony undermines the district court’s

suggestion that Focus presented no evidence that the advertisements would have

been denied pursuant to the contract, and is more than sufficient to establish a

fairly traceable connection between the injury-in-fact alleged by Focus and

appellees’ alleged conduct.

This is especially so given that the injury-in-fact and, as we explain below,

redressibility prongs of the standing inquiry plainly are satisfied. In short, Focus

has presented evidence establishing, for standing purposes, a causal connection

between the PSTA-Eller agreement and the rejection of its Love Won Out

advertisements. This evidence includes a showing that (1) more than one Eller

employee expressly said that the “Tampa Transit Authority” had rejected the

advertisements; and (2) the ads were rejected on the same grounds -- namely,

political controversialism, offensiveness and the potential to subject a discernible

social group to ridicule -- that are expressly designated in the agreement as

unacceptable.

The third component of the standing inquiry -- redressibility -- is in this case

established in exactly the same manner as the causation requirement is satisfied. If

the PSTA-Eller agreement caused Focus to sustain concrete injury -- that is, if the

18
decision to reject the Love Won Out advertisements was based on Section V of

that contract (and for standing purposes the evidence is sufficient on this point) --

then that injury can be redressed by an injunction prohibiting the enforcement of

that agreement. The redressibility requirement also is satisfied here.

Finally, the district court also appears to have held -- and this point is

closely tied to its conclusions regarding the lack of a causal relationship between

the PSTA-Eller agreement and the rejection of appellant’s proposed

advertisements -- that Focus was unable to establish its 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. Lyons, 461 U.S. at 103, 103 S. Ct. at 1666; see also id. at 102, 103

S. Ct. at 1665 (“‘Past exposure to illegal conduct does not in itself show a present

case or controversy regarding injunctive relief ... if unaccompanied by any

continuing, present adverse effects.’” (quoting O’Shea v. Littleton, 414 U.S. 488,

495-96, 94 S. Ct. 669, 675-76, 38 L. Ed. 2d 674 (1974))); Johnson v. Bd. of

Regents, 263 F.3d 1234, 1265 (11th Cir. 2001) (“[T]o have standing to obtain

forward-looking relief, a plaintiff must show a sufficient likelihood that he will be

affected by the allegedly unlawful conduct in the future.”) (citations omitted);

19
Wooden v. Bd. of Regents, 247 F.3d 1262, 1284 (11th Cir. 2001) (“Because

injunctions regulate future conduct, a party has standing to seek injunctive relief

only if the party alleges, and ultimately proves, a real and immediate -- as opposed

to a merely conjectural or hypothetical -- threat of future injury.”). This is so

because “[l]ogically, ‘a prospective remedy will provide no relief for an injury that

is, and likely will remain, entirely in the past.’” Church v. City of Huntsville, 30

F.3d 1332, 1337 (11th Cir. 1994) (quoting American Postal Workers Union v.

Frank, 968 F.2d 1373, 1376 (1st Cir. 1992)).

Lyons does not pose a bar to Focus’s standing to sue for prospective

injunctive or declaratory relief. Importantly, in reaching this determination, we

note that Article III standing must be determined as of the time at which the

plaintiff’s complaint is filed. See Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167, 180, 120 S. Ct. 693, 704, 145 L. Ed. 2d 610

(2000) (“[W]e have an obligation to assure ourselves that FOE had Article III

standing at the outset of the litigation.”); Cleveland Branch, NAACP v. City of

Parma, 263 F.3d 513, 524 (6th Cir. 2001) (“[S]tanding does not have to be

maintained throughout all stages of litigation. Instead, it is to be determined as of

the time the complaint is filed.”); Becker v. Fed. Election Comm’n, 230 F.3d 381,

386 n.3 (1st Cir. 2000) (noting that Lujan “clearly indicat[es] that standing is to be

20
‘assessed under the facts existing when the complaint is filed’”) [(citations

omitted)]; White v. Lee, 227 F.3d 1214, 1243 (9th Cir. 2000) (“Standing is

examined at ‘the commencement of the litigation.’”); Park v. Forest Serv. of the

United States, 205 F.3d 1034, 1037 (8th Cir. 2000) (“We do not think, however,

that the actual use of checkpoints in 1997, 1998, and 1999 is relevant on the issue

of standing because all of these events occurred after [the plaintiff] filed her

original complaint.”); Perry v. Vill. of Arlington Heights, 186 F.3d 826, 830 (7th

Cir. 1999) (“Because standing goes to the jurisdiction of a federal court to hear a

particular case, it must exist at the commencement of the suit.”); Carr v. Alta

Verde Indus., Inc., 931 F.2d 1055, 1061 (5th Cir. 1991) (“As with all questions of

subject matter jurisdiction except mootness, standing is determined as of the date

of the filing of the complaint, and subsequent events do not deprive the court of

jurisdiction.”).

In its original complaint, filed on January 11, 2001, Focus explicitly said

that it would hold another Love Won Out conference, prospectively, on a date

certain (November 10, 2001), and that it would seek to advertise this seminar on

PSTA shelters. Although Focus filed an amended complaint on July 10, 2002 --

and thus it is necessary that appellant possessed Article III standing on this later

date, see County of Riverside v. McLaughlin, 500 U.S. 44, 51, 111 S. Ct. 1661,

21
1667, 114 L. Ed. 2d 49 (1991) (undertaking the Lyons standing inquiry as of “the

time the second amended complaint was filed”) -- this pleading featured the

identical allegations regarding appellant’s plans to hold another Love Won Out

conference on November 10, 2001 and to advertise this seminar on PSTA shelters.

Under Fed. R. Civ. P. 15(c)(2), these allegations plainly relate back to January 11,

2001, the date on which appellant’s original complaint was filed. See Mederos v.

United States, 218 F.3d 1252, 1254 (11th Cir. 2000) (“Mederos’s second motion

satisfied the requirements to relate back to his initial motion under Fed.R.Civ.P.

15(c)(2), as the second motion stated identical allegations as his initial motion.”

(citing Fed. R. Civ. P. 15(c)(2) and United States v. Duffus, 174 F.3d 333, 337 (3d

Cir. 1999) and United States v. Craycraft, 167 F.3d 451, 457 (8th Cir. 1999)))

(emphasis added).

Having demonstrated injury-in-fact, causation and redressibility, and having

made the showing required by Lyons, Focus has established Article III standing to

raise a claim concerning the constitutionality of Section V of the agreement and

the rejection of its advertisements pursuant to that section. Today we decide no

more and no less. Our decision that appellant has standing says nothing more than

that Focus is entitled to be heard in a federal court on its First Amendment claims.

It does not mean that appellant will likely prevail on those claims.

22
B. State Action4

Focus also denotes as error the district court’s conclusion that final

summary judgment was appropriate based on appellant’s failure to show that 42

U.S.C. § 1983’s state action requirement was satisfied in this case. After carefully

considering the parties’ arguments as to this point and reviewing the record

evidence, we hold that Focus has demonstrated the existence of a genuine factual

issue as to whether state action is presented here. See generally Goldstein v.

Chestnut Ridge Volunteer Fire Co., 25 F.3d 1039 (4th Cir. 1999) (table disposition)

(holding that the state action determination turned on unresolved factual questions,

and that summary judgment consequently was inappropriate); Gibson v. City of

Chicago, 910 F.2d 1510, 1517 (1990) (“[T]he essential inquiry [at the summary

judgment stage] becomes whether [the plaintiff] has created a triable issue of fact

concerning whether [the officer’s] actions related in some way to the performance

of a police duty.”); Layne v. Sampley, 627 F.2d 12, 13 (6th Cir. 1980) (“Although

in certain cases, it is possible to determine the question whether a person acted

4
Although § 1983 technically requires that the action in question be taken “under color of
[state] law,” this requirement is considered in pari materia with the Fourteenth Amendment’s
state action requirement. See Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S. Ct. 2764, 2269-
70, 73 L. Ed. 2d 418 (1982) (“In cases under § 1983, ‘under color’ of law has consistently been
treated as the same thing as the ‘state action’ required under the Fourteenth Amendment.”
(quoting United States v. Price, 383 U.S. 787, 794 n.7, 86 S. Ct. 1152, 1157 n.7, 16 L. Ed. 2d
267 (1966))). For simplicity’s sake, we refer to this as § 1983’s “state action” requirement.

23
under color of state law as a matter of law, there may remain in some instances

‘unanswered questions of fact regarding the proper characterization of the actions’

for the jury to decide.” (quoting Rowe v. Tennessee, 609 F.2d 259, 265 (6th Cir.

1979))) (other citations omitted). Accordingly, the district court erred by entering

final summary judgment in favor of PSTA on this issue.

Section 1983 provides, in pertinent part:

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought
against a judicial officer for an act or omission taken in
such officer’s judicial capacity, injunctive relief shall not
be granted unless a declaratory decree was violated or
declaratory relief was unavailable.

42 U.S.C. § 1983.

As the Supreme Court has explained, “[t]o state a claim for relief in an

action brought under § 1983, [plaintiffs] must establish that they were deprived of

a right secured by the Constitution or laws of the United States, and that the

alleged deprivation was committed under color of state law. Like the state-action

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requirement of the Fourteenth Amendment, the under-color-of-state-law element

of § 1983 excludes from its reach merely private conduct, no matter how

discriminatory or wrongful.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.

40, 49-50, 119 S. Ct. 977, 985, 143 L. Ed. 2d 130 (1999) (internal punctuation and

citations omitted). Section 1983’s state action requirement applies regardless of

the nature of the substantive deprivation being alleged. Thus, Focus may advance

neither its facial nor its as-applied challenge if the rejection of its advertisements

is not attributable to PSTA.

We have employed three distinct tests in determining whether the actions of

a private entity are properly attributed to the state. In Willis v. Univ. Health

Servs., Inc., we summarized the distinctions between these tests as follows:

Previously, this circuit set forth the three primary tests the Supreme
Court has used to determine whether state action exists: (1) the public
function test; (2) the state compulsion test; and (3) the nexus/joint
action test. The public function test limits state action to instances
where private actors are performing functions “traditionally the
exclusive prerogative of the state.” The state compulsion test limits
state action to instances where the government “has coerced or at
least significantly encouraged the action alleged to violate the
Constitution.” The nexus/joint action test applies where “the state has
so far insinuated itself into a position of interdependence with the
[private party] that it was a joint participant in the enterprise.” We
must determine on a case-by-case basis whether sufficient state action
is present from a non-state actor (defendant) to sustain a section 1983
claim.

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993 F.2d 837, 840 (11th Cir. 1993) (quoting National Broad. Co., Inc. (“NBC”) v.

Communications Workers of Am., AFL-CIO, 860 F.2d 1022, 1026-27 (11th Cir.

1988)) (other citations omitted).

In Blum v. Yaretsky, 457 U.S. 991, 102 S. Ct. 2777, 73 L. Ed. 2d 534

(1982), a case featuring facts similar to those now at bar, the Supreme Court

applied a standard analogous to our nexus/joint action test. In Blum, the plaintiffs

brought a § 1983 action challenging decisions by several private nursing homes to

transfer or discharge Medicaid patients. However, the defendants in the case

were not the nursing homes or any agent thereof, but instead were “state officials

responsible for administering the Medicaid program [and regulating nursing

homes] in New York.” Id. at 1003, 102 S. Ct. at 2785. In other words, the Court

summarized, the lawsuit sought “to hold state officials liable for the actions of

private parties . . . .” Id.

In outlining a mode for determining the propriety of holding the state liable

for private conduct, the Court said: “the complaining party must . . . show that

‘there is a sufficiently close nexus between the State and the challenged action of

the regulated entity so that the action of the latter may be fairly treated as that of

the State itself.’” Id. (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351,

95 S. Ct. 449, 453, 42 L. Ed. 2d 477 (1974)). It continued: “The purpose of this

26
requirement is to assure that constitutional standards are invoked only when it can

be said that the State is responsible for the specific conduct of which the plaintiff

complains. The importance of this assurance is evident when, as in this case, the

complaining party seeks to hold the State liable for the actions of private parties.”

Id. The Court further held that “although the factual setting of each case will be

significant, our precedents indicate that a State normally can be held responsible

for a private decision only when it has exercised coercive power or has provided

such significant encouragement, either overt or covert, that the choice must in law

be deemed to be that of the State. Mere approval of or acquiescence in the

initiatives of a private party is not sufficient to justify holding the State

responsible for those initiatives under the terms of the Fourteenth Amendment.”

Id. at 1004-05, 102 S. Ct. at 2786 (citations omitted) (emphasis added).

Consistent with the standard outlined in Blum, under the nexus/joint action

test, we ask “whether ‘the [s]tate has so far insinuated itself into a position of

interdependence with the [private parties] that it was a joint participant in the

enterprise.’ ‘To charge a private party with [s]tate action under this standard, the

governmental body and private party must be intertwined in a symbiotic

relationship.’ The Supreme Court has indicated that the symbiotic relationship

must involve the ‘specific conduct of which the plaintiff complains.’” Rayburn ex

27
rel. Rayburn v. Hogue, 241 F.3d 1341, 1348 (11th Cir. 2001) (quoting NBC, 860

F.2d at 1026-27 and Sullivan, 526 U.S. at 51, 119 S. Ct. at 985) (other citations

and internal punctuation omitted).

In this case, PSTA established explicit rules for determining the

acceptability of an advertisement and, under its agreement with Eller, retains final

decision-making authority over the acceptability of all proposed advertisements.

Moreover, Focus has introduced both direct (though contested) evidence that

PSTA rejected the Love Won Out advertisements, and uncontested evidence that

its advertisements were rejected on bases expressly designated by PSTA as

unacceptable. As such, appellant has presented ample objective evidence on

which a reasonable factfinder could conclude that PSTA is responsible for the

rejection of its advertisements. In a relatively similar context, we rejected a

nexus/joint action argument based primarily on the fact that “[t]here [was] no

evidence . . . that [the state] had anything to do with [the private entity’s] decision

to deny [the plaintiff’s] application; rather, the Agreement gave sole authority

regarding such decisions to [the private entity].” Patrick v. Floyd Med. Ctr., 201

F.3d 1313, 1316 (11th Cir. 2000). This case presents the precise inverse of that

situation, and accordingly the legal outcome also diverges from the one reached in

Patrick. In short, there is palpable evidence that this is not a case where a private

28
actor in a contractual relationship with a governmental entity acted independently

in harming a third party, but rather that the state, acting through the private entity,

caused the third party’s harm.

The district court rejected the nexus/joint action test as a basis for finding

state action in this case because “actions of private parties under contract with

state agencies do not provide a sufficient nexus for state action.” This proposition,

of course, is true as far as it goes; the mere fact that a private actor contracts with a

governmental entity does not mean that every action taken by the private actor can

be attributed to the government. However, in cases (like this one) where the state

contractually requires the private actor to take particular actions -- e.g., to reject

proposed advertisements under certain specifically delineated circumstances --

then it can be said at the summary judgment stage that in acting in accordance with

the governmental directive the private actor is merely a surrogate for the state, and

the tie between them is sufficiently strong for the nexus/joint action test to be

satisfied. This conclusion is strengthened when there is record evidence that the

state itself unmistakably directed the private actor to take particular actions. Cf.

Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 297-98,

121 S. Ct. 924, 931, 148 L. Ed. 2d 807 (2001) (discussing the Tarkanian case, and

saying that “[s]ince it was difficult to see the NCAA, not as a collective

29
membership, but as surrogate for the one State, we held the organization’s

connection with Nevada too insubstantial to ground a state-action claim” (citing

Tarkanian, 488 U.S. at 193, 196, 109 S. Ct. at 462-64)).

On the record before this court, we are satisfied Focus has presented

sufficient evidence that, if credited, would satisfy § 1983’s state action

requirement under the nexus/joint action test. This evidence fairly creates a triable

issue of material fact and precludes the entry of final summary judgment against

appellant. The district court erred in concluding otherwise.

C. PSTA’s Rule 195 Argument

5
This Rule provides:

(a) Persons to be Joined if Feasible. A person who is subject to
service of process and whose joinder will not deprive the court of
jurisdiction over the subject matter of the action shall be joined as a
party in the action if (1) in the person’s absence complete relief
cannot be accorded among those already parties, or (2) the person
claims an interest relating to the subject of the action and is so
situated that the disposition of the action in the person’s absence may
(i) as a practical matter impair or impede the person’s ability to
protect that interest or (ii) leave any of the persons already parties
subject to a substantial risk of incurring double, multiple, or
otherwise inconsistent obligations by reason of the claimed interest.
If the person has not been so joined, the court shall order that the
person be made a party. If the person should join as a plaintiff but
refuses to do so, the person may be made a defendant, or, in a proper
case, an involuntary plaintiff. If the joined party objects to venue and
joinder of that party would render the venue of the action improper,

30
 PSTA also argues that because Focus failed to join Eller as an indispensable

party under Fed. R. Civ. P. 19, the action must be dismissed. The district court

never evaluated this contention, having concluded that summary judgment against

Focus was appropriate on standing and state action grounds.

As we have explained:

Rule 19 states a two-part test for determining whether a
party is indispensable. First, the court must ascertain
under the standards of Rule 19(a) whether the person in

that party shall be dismissed from the action.

(b) Determination by Court Whenever Joinder not Feasible. If a
person as described in subdivision (a)(1)-(2) hereof cannot be made
a party, the court shall determine whether in equity and good
conscience the action should proceed among the parties before it, or
should be dismissed, the absent person being thus regarded as
indispensable. The factors to be considered by the court include:
first, to what extent a judgment rendered in the person’s absence
might be prejudicial to the person or those already parties; second, the
extent to which, by protective provisions in the judgment, by the
shaping of relief, or other measures, the prejudice can be lessened or
avoided; third, whether a judgment rendered in the person’s absence
will be adequate; fourth, whether the plaintiff will have an adequate
remedy if the action is dismissed for nonjoinder.

(c) Pleading Reasons for Nonjoinder. A pleading asserting a claim
for relief shall state the names, if known to the pleader, of any persons
as prescribed in subdivision (a)(1)-(2) hereof who are not joined, and
the reasons why they are not joined.

(d) Exception of Class Actions. This rule is subject to the provisions
of Rule 23.

Fed. R. Civ. P. 19.

31
 question is one who should be joined if feasible. If the
person should be joined but cannot be (because, for
example, joinder would divest the court of jurisdiction)
then the court must inquire whether, applying the factors
enumerated in Rule 19(b), the litigation may continue.

Challenge Homes, Inc. v. Greater Naples Care Ctr., Inc., 669 F.2d 667, 669 (11th

Cir. 1982). In making the first determination -- i.e., whether the party in question

“should be joined,” “pragmatic concerns, especially the effect on the parties and

the litigation,’ control.” Id. (quoting Smith v. State Farm Fire & Cas. Co., 633

F.2d 401, 405 (5th Cir. 1980); see also In re Torcise, 116 F.3d 860, 865 (11th Cir.

1997) (“[F]indings of indispensability must be based on stated pragmatic

considerations, especially the effect on parties and on litigation.”).

In this case, PSTA argues that Eller is an indispensable party, and that

Focus’s failure to join Eller warranted the district court’s entry of final summary

judgment in its favor. Specifically, PSTA argues that because it has no power to

affirmatively require Eller to run a particular advertisement on its bus shelters,

Focus cannot possibly benefit from an injunction requiring the placement of its

advertisements on the shelters unless Eller is made a party to this action. Focus

argues in response that the primary relief it seeks is the invalidation of the PSTA-

Eller agreement, and that Eller need not be joined in order to accomplish this.

32
 Although Focus’s argument is correct as far as it goes, we agree with PSTA

that complete relief cannot be afforded in Eller’s absence, as PSTA cannot require

the running of a particular advertisement on its bus shelters. Accordingly, under

Fed. R. Civ. P. 19(a) Eller should be joined in this action, if feasible. However,

PSTA has identified no reason why Eller cannot be joined in this action. For

example, we need not worry about the destruction of complete diversity, as there is

federal question jurisdiction over this action. See 28 U.S.C. § 1331. Moreover, it

appears plain that Eller is subject to personal jurisdiction in the Middle District of

Florida.

Accordingly, we need not resolve the question of whether Eller is

indispensable or merely necessary under Rule 19(b). See California v. Arizona,

440 U.S. 59, 62 n.3, 99 S. Ct. 919, 922 n.3, 59 L. Ed. 2d 144 (1979) (“[W]hen a

person described by Rule 19(a) cannot be joined, ‘the court shall determine

whether in equity and good conscience the action should proceed among the

parties before it, or should be dismissed, the absent person being thus regarded as

indispensable.’” (quoting Fed. R. Civ. P. 19(b)) (emphasis added); Bassett v.

Mashantucket Pequot Tribe, 204 F.3d 343, 358 (2d Cir. 2000) (recognizing that

dismissal for failure to join an indispensable party is appropriate only where the

entity in question “‘cannot be made a party’” (quoting Fed. R. Civ. P. 19(b)).

33
 Because it appears that Eller readily can be made a party to this action, the

standard for dismissal under Rule 19(b) is unmet. Instead, on remand Focus need

only join Eller as a party defendant in this action. See Fed. R. Civ. P. 19(a) (“If

the [party to be joined if feasible] has not been . . . joined, the court shall order that

the person be made a party.”).

For the foregoing reasons, the district court erred insofar as it concluded

that Focus lacks Article III standing to advance its claims. The court also erred by

entering final summary judgment for PSTA on the ground that § 1983’s “under

color of state law” (state action) requirement is unsatisfied, as this remains a

triable factual issue. Because we have directed Focus to join Eller in this action,

and its claims for injunctive relief consequently will remain justiciable, each of

appellant’s First Amendment claims should be addressed on their merits. This is a

task that we leave in the first instance to the district court on remand.

Accordingly, we vacate the district court’s order entering final summary

judgment in favor of PSTA and remand for further proceedings consistent with

this opinion.

VACATED AND REMANDED.

34