Tanner Advertising Group, L.L.C. v. Fayette County

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 9, 2006
No. 04-13210 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 03-00023-CV-JTC-3

TANNER ADVERTISING GROUP, L.L.C.,

Plaintiff-Appellant,

versus

FAYETTE COUNTY, GEORGIA,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(June 9, 2006)

Before EDMONDSON, Chief Judge, TJOFLAT, ANDERSON, BIRCH,
DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON, PRYOR
and KRAVITCH *, Circuit Judges.

*
Senior Circuit Judge Kravitch elected to participate in this decision pursuant to 28 U.S.C. §
46(c).
PRYOR, Circuit Judge:

This appeal by Tanner Advertising Group, LLC, of an order that dismissed

its challenge of the Fayette County Sign Ordinance of 1998 presents issues of

mootness and standing. In 2003, Tanner applied for and was denied a sign permit

because Tanner sought to construct signs that did not comply with section 1-43 of

the Sign Ordinance. Fayette County, Ga., Sign Ordinance §§ 1-1–1-82 (1998)

[hereinafter “1998 Sign Ordinance”]. Tanner moved permanently to enjoin the

enforcement of section 1-43 and several other provisions of the 1998 Sign

Ordinance as a violation of the freedom of speech protected by the First

Amendment, as incorporated by the Fourteenth Amendment. The district court

denied injunctive relief on the ground that section 1-43 was constitutional and

Tanner lacked standing to challenge the other provisions of the 1998 Sign

Ordinance. A panel of this court reversed and concluded that, notwithstanding the

constitutionality of section 1-43, Tanner had standing, under the overbreadth

doctrine, to challenge the other provisions of the 1998 Sign Ordinance. Tanner

Adver. Group LLC v. Fayette County, 411 F.3d 1272 (11th Cir.), vacated, 429

F.3d 1012 (11th Cir. 2005). We vacated that decision and granted rehearing en

banc to decide whether an injury under one provision of the 1998 Sign Ordinance

confers standing to challenge other provisions. After we granted the petition,

2
Fayette County repealed the 1998 Sign Ordinance and enacted a comprehensive

new Sign Ordinance. See Fayette County, Ga., Sign Ordinance §§ 1-1–6-1 (2005)

[hereinafter “2005 Sign Ordinance”]. Because all but one of the challenges by

Tanner were rendered moot by the 2005 Sign Ordinance and Tanner lacks standing

to challenge the remaining provision, we now dismiss this appeal.

I. BACKGROUND

To explain the context of this appeal, we address three matters. We first

review the operation of relevant provisions of the 1998 Sign Ordinance. We then

review the litigation that led to this appeal. We then discuss the repeal of the 1998

Sign Ordinance and the enactment of the 2005 Sign Ordinance.

A. The 1998 Sign Ordinance

The 1998 Sign Ordinance governed the permitting, location, size, and

maintenance of all signs in Fayette County. The 1998 Sign Ordinance classified

signs as either “on-premise signs” or “off-premise signs.” See 1998 Sign

Ordinance §§ 1-1, 1-6, 1-43. Tanner planned to construct only off-premise signs.

The 1998 Sign Ordinance defined an “off-premise sign” as “[a] sign that

advertises a product, service, place, activity, person, institution, business or

solicitation which is not carried out on the premises upon which the sign is

located.” Id. § 1-1. Permanent off-premise signs had to be “no more than three []

3
feet above ground level” and “no less than and no greater than two [] horizontal

feet by two [] vertical feet in width.” Id. § 1-43(B). The 1998 Sign Ordinance also

required that a permanent off-premise sign “be brown with white lettering” and

contain “information permanently legible and affixed” to the back of the sign. Id.

§ 1-43(C). A permanent off-premise sign could “communicate either a commercial

or noncommercial message.” Id. § 1-43(A). “A permit [was] required” for every

off-premise sign. Id.

To obtain a permit for a permanent off-premise sign, a person was required

to submit to the Zoning Administrator an application with proposed plans for the

structure and location of the sign. Id. § 1-12. The Zoning Administrator reviewed

the application to determine whether the sign complied with the 1998 Sign

Ordinance, id. § 1-11(B)(1), and issued a permit “if the proposed structure [was] in

compliance with the requirements of” the 1998 Sign Ordinance. The 1998 Sign

Ordinance did not provide a time limit within which the Zoning Administrator had

to grant or deny a permit. See id. §§ 1-11, 1-12.

The 1998 Sign Ordinance also prohibited the use of “Attention-getting

devices.” Id. § 1-5(A)(10). The 1998 Sign Ordinance stated, “No balloons . . . ,

streamers, lights, pennants, etc. shall be used to attract attention to any sign or

business. This includes neon tubing or bare bulb lights encircling a window or

4
outlining the structure.” Id. A sign could be illuminated internally or externally.

Id. § 1-3. A sign was illuminated externally when it was “illuminated by an

external light source directed primarily toward such sign. Such source cannot be a

device that changes color, flashes, or alternates.” Id.

Failure to comply with the 1998 Sign Ordinance was “a misdemeanor and

the violator [would] be subject to a fine of up to $1,000.00 or imprisonment for up

to twelve (12) months.” Id. § 1-4(E). Each sign that violated the 1998 Sign

Ordinance was “considered a separate violation when applying the penalt[ies].” Id.

§ 1-4(C). The 1998 Sign Ordinance also provided that “[s]hould any article, clause

or provision of this ordinance be declared by a court of competent jurisdiction to

be invalid such action shall not affect the validity of the ordinance as a whole.” Id.

§ 1-82.

B. The History of This Litigation

Tanner is a Georgia limited liability company that buys and leases land to

construct commercial and noncommercial signs. Tanner entered eight lease

agreements with owners of real property to construct signs in commercial and

industrial zones in Fayette County. On February 3, 2003, Tanner submitted eight

applications for permits to construct signs that were 50 feet in height and 672

square feet in size. Tanner proposed to construct “Free-Standing,” “Permanent

5
Off-Premise” signs with “two 14' x 48' faces . . . mounted in a V-Type

configuration” that displayed “various noncommercial and commercial messages.”

Tanner marked the space on the applications for “External Illumination,” but did

not mark the space for “Internal Illumination.” The eight applications were denied

the same day that they were submitted on the ground that they failed to comply

with section 1-43 of the 1998 Sign Ordinance.

On February 19, 2003, Tanner filed a complaint to enjoin the enforcement of

the 1998 Sign Ordinance and recover damages. Tanner alleged that the 1998 Sign

Ordinance violated the First Amendment of the United States Constitution as

incorporated to the States through the Fourteenth Amendment because it “fails . . .

to circumscribe the time in which government officials must grant or deny a

permit,” grants county officials “virtually limitless discretion in deciding whether a

sign permit will be granted or denied,” and is a content-based prior restraint of

speech that is not narrowly tailored to serve a compelling governmental objective.

Tanner attached a certified copy of the 1998 Sign Ordinance to the complaint.

On May 9, Tanner moved for a permanent injunction and argued that it

would suffer irreparable harm from the 1998 Sign Ordinance because “[t]he

County’s enforcement of . . . its unconstitutional regulations has not only

postponed, but has effectively foreclosed Tanner’s ability to speak” in five ways.

6
First, Tanner argued that the 1998 Sign Ordinance “prevent[ed] the posting of most

signs without prior approval of County officials,” but “grant[ed] County officials

unlimited time in which to approve or deny a permit.” See id. §§ 1-11, 1-12.

Second, Tanner contended that several provisions of the 1998 Sign Ordinance

granted unbridled discretion to county officials “to either allow or prohibit signs

based upon how the officials choose to define the sign.” See id. §§ 1-3, 1-5(10), 1-

5(11)(a)(2). Third, Tanner argued that the 1998 Sign Ordinance unconstitutionally

restricted commercial speech because “[s]ection 1-44 of the regulations allows the

County to be blanketed with a multitude of barely readable off-premise temporary

signs that are exempt from permit requirements,” but the city “provide[d] no

findings or evidence whatsoever” that the provision furthers traffic safety and

aesthetics. See id. §§ 1-43, 1-44. Fourth, Tanner argued that the 1998 Sign

Ordinance completely banned “window signs, banners and flags . . . in residential

districts.” See id. §§ 1-51–1-55. Fifth, Tanner complained that the 1998 Sign

Ordinance distinguished between commercial and noncommerical speech, but was

not narrowly tailored to serve a compelling government interest. See id. §§ 1-70.

In support of its motion, Tanner filed a declaration from its member and

representative, Michael Chordegian. Chordegian stated that “Tanner intends to

utilize its proposed signs in Fayette County, Georgia[,] to communicate

7
commercial as well as political, ideological, religious and other noncommercial

messages.” Chordegian also stated that “[d]ue to the County’s enforcement of the

1998 Sign Ordinance, Tanner has been deprived of its ability to post commercial

and noncommercial messages on the requested signs. Such deprivation has cost

Tanner substantial economic losses.” Chordegian surmised that “[t]he County’s

enforcement of its unconstitutional Sign Ordinance has cost Tanner at least $3,000

per sign location, per month since the date the applications were submitted.” Other

than the declaration of Chordegian and the eight sign applications that were denied,

Tanner did not submit any other evidence in support of the motion.

Fayette County filed two amendments to the 1998 Sign Ordinance as

exhibits in its response against permanent injunction. The first amendment

imposed a 30-day limit on the Zoning Administrator to grant or deny a permit.

The second amendment provided that “[a]ppeals from the decision of the Zoning

Administrator . . . shall be made to the Zoning Board of Appeals.” It also provided

that violations of the 1998 Sign Ordinance would result in fines of “no more than

$1,000.00 or imprison[ment] for not more than sixty (60) days . . . . Each day a

violation continues shall be deemed as a separate offense.”

On February 13, 2004, the district court held a hearing regarding Tanner’s

motion for a permanent injunction. When the district court asked Tanner whether

8
the evidentiary record was complete, Tanner responded, “We think the record is

abundantly clear. We are comfortable with the record.” The district court then

asked Tanner whether it had standing to challenge the entire 1998 Sign Ordinance

under Granite State Outdoor Advertising v. City of Clearwater, 351 F.3d 1112

(11th Cir. 2003). Tanner stated that Clearwater “re-affirms and reinforces . . .

overbreadth standing in this case.”

Tanner argued that it suffered harm because it “is currently being denied the

right to speak.” Tanner reasoned that it had “direct standing . . . because [it] was

denied a permit.” Tanner contended that the denial of the permit established

standing because it “was forced to go through an application process” that did not

provide time limits for decisions and appeals. Tanner asserted that it had standing

to challenge section 1-43 because it was denied sign permits under that provision.

Tanner also contended that a provision of the 1998 Sign Ordinance that prohibited

obscene material “could be applied to [Tanner] as soon as [it] put up this sign or

any other sign in the county” because the provision “allowed the county officials to

take down any sign that they don’t approve of.” See 1998 Sign Ordinance § 1-

5(A)(11).

The district court denied the permanent injunction. The district court found

that Clearwater “does not stand for the proposition that a plaintiff who establishes

9
an injury in fact under one provision of an ordinance may challenge the entire

ordinance under the overbreadth doctrine.” The district court reasoned that

because “the only harm [Tanner] suffered was under § 1-43, [Tanner] has standing

to challenge only § 1-43 as applied to [Tanner] and under the overbreadth doctrine

under § 1-43 as applied to non-commercial speech.” The district court then

concluded that section 1-43, as applied to the permit applications of Tanner, was

content-neutral and a valid time, place, and manner restriction. The district court

also concluded that section 1-43 was not overbroad facially because it “does not

substantially infringe the rights of others not party to this case.” The district court

dismissed the complaint filed by Tanner, including the request for damages.

Tanner appealed and argued that the district court erroneously applied a

“narrow interpretation of overbreadth” in Clearwater. Although Tanner contended

that Clearwater restricted standing only for plaintiffs who challenged content-

neutral speech restrictions, Tanner argued that Clearwater was in conflict with the

precedents of the Supreme Court and this Court. Tanner argued that the 1998 Sign

Ordinance was content-based because it regulated “obscene or indecent material,”

see id. § 1-5, and favored commercial speech over noncommercial speech, see id.

§§ 1-43, 1-44, 1-70(A). Tanner argued that “the District Court erred by failing to

address the inherent conflicts within the Sign Ordinance that directly impact the

10
constitutionality of the regulations generally, and Section 1-43 specifically.” See

id. §§ 1-70(A), 1-61 (A)(1), (10).

A panel of this Court reversed and held that Tanner had standing to

challenge facially all provisions of the 1998 Sign Ordinance. Tanner Adver.

Group, LLC, 411 F.3d at 1277. The panel concluded that the overbreadth doctrine

allowed plaintiffs to bring claims on behalf of third parties because “individual

private citizens who are denied the opportunity to express themselves under an

unconstitutional ordinance often find the barriers to legal redress to be too high.”

Id. at 1275. The panel also distinguished our decision in Clearwater on the ground

that Clearwater “overlooked our past Eleventh Circuit precedent.” Tanner Adver.

Group, LLC, 411 F.3d at 1277. The panel explained, “Prior to Clearwater, if a . . .

plaintiff met the Article III minimal requirements for standing under one provision

of the ordinance, it was accepted that courts would grant standing for the plaintiff

to also make a broad facial challenge to the constitutionality of the Ordinance as a

whole.” Id. at 1276 (citing Metromedia, Inc. v. San Diego, 453 U.S. 490, 504

n.11, 101 S. Ct. 2882, 2890 n.11 (1981) (plurality opinion); Granite State Outdoor

Adver. v. City of St. Petersburg, 348 F.3d 1278 (11th Cir. 2003); Dimmitt v. City

of Clearwater, 985 F.2d 1565 (11th Cir. 1993); National Adver. Co. v. City of Ft.

Lauderdale, 934 F.2d 283 (11th Cir. 1991); Solomon v. City of Gainesville, 763

11
F.2d 1212 (11th Cir. 1985)). The panel concluded that it was “compelled to follow

our ‘prior precedent’ or ‘earliest case’ rule, uphold our decisions preceding

Clearwater, and disregard the narrow approach to the overbreadth doctrine

employed by the Clearwater court.” Tanner Adver. Group, LLC, 411 F.3d at 1277.

The panel reversed the denial of a permanent injunction and remanded for further

proceedings. Id. at 1278.

After the panel entered its decision, two other courts entered decisions about

the 1998 Sign Ordinance. First, on January 10, 2005, the federal district court for

the Northern District of Georgia enjoined the enforcement of section 1-55 of the

1998 Sign Ordinance “as it related to political or campaign signs.” Maxwell v.

Fayette County, No. 3:05-CV-081-JTC (N.D. Ga. Jan. 10, 2005). Second, a

Georgia court concluded that several provisions of the 1998 Sign Ordinance

violated the United States and Georgia Constitutions. Coffey v. Fayette County,

No. 2004V-0754(E) (Sup. Ct. Fayette Co., Ga. July 20, 2005). The court struck the

phrase, “such sign may not be used to direct the public to a place or event at a

location other than the location upon which the sign is posted,” as unconstitutional

when applied to noncommercial speech. Id. The court also struck several

exemptions, see 1998 Sign Ordinance §§ 1-64, 1-69, 1-3, 1-67, 1-65, 1-55, but

upheld all other provisions. Id.

12
 On November 1, 2005, we granted the petition for rehearing en banc filed by

Fayette County and vacated the panel opinion. Tanner Adver. Group, LLC v.

Fayette County, 429 F.3d 1012 (11th Cir. 2005).

C. The 2005 Sign Ordinance

On November 2, 2005, Fayette County repealed the 1998 Sign Ordinance

and enacted a comprehensive new sign ordinance. The 2005 Sign Ordinance

requires the Zoning Administrator to grant or deny a permit within thirty days.

2005 Sign Ordinance § 2-2. The 2005 Sign Ordinance does not distinguish

between on-premise and off-premise signs or commercial and noncommercial

speech. The new ordinance contains a specific definition of “obscene” material.

Id. § 2-5(A)(8). There is no exemption for “special event” signs. It also does not

prohibit window signs and flags in residential districts. Id. § 2-4. The only

provision challenged by Tanner in the 1998 Sign Ordinance that remains

substantially similar in the 2005 Sign Ordinance is the prohibition of “Attention-

getting devices,” which are defined as “balloons[] . . . neon tubing or bare bulb

lights encircling a window or outlining a structure.” Id. § 2-5(A)(7).

II. STANDARD OF REVIEW

We review the question of mootness de novo. Coral Springs St. Sys., Inc. v.

City of Sunrise, 371 F.3d 1320, 1328 (11th Cir. 2004) (quoting Christian Coal. of

13
Ala. v. Cole, 355 F.3d 1288, 1290 (11th Cir. 2004)). We review standing

determinations de novo. Bochese v. Town of Ponce Inlet, 405 F.3d 964, 975 (11th

Cir.), cert. denied, ___ U.S. ___, 126 S. Ct. 377 (2005).

III. DISCUSSION

Tanner argues that several provisions of the 1998 Sign Ordinance violate the

freedom of speech guaranteed by the First Amendment. Tanner does not appeal

the ruling of the district court that section 1-43 of the 1998 Sign Ordinance was

constitutional as applied to its permit applications, but Tanner argues that the harm

it suffered in the denial of its applications for sign permits allows it to challenge

other provisions of the 1998 Sign Ordinance. Tanner contends that it has standing

to challenge (1) the procedural requirements of the 1998 Sign Ordinance, 1998

Sign Ordinance §§ 1-11, 1-12(B); (2) the provisions that favor “on-premise”

noncommercial speech over “off-premise” noncommercial speech, id. §§ 1-43, 1-

44, 1-55, 1-62, 1-70(A); (3) the provisions that allegedly grant unbridled discretion

to County officials to define “special events,” id. § 1-3, “Attention-getting

devices,” id. § 1-5(10), and “obscene” material, id. § 1-5(11)(a)(2); and (4) the

prohibition on window signs in residential districts, see id. §§ 1-51–1-55. Tanner

also argues that the enactment of the 2005 Sign Ordinance does not render this

appeal moot.

14
 Tanner’s arguments fail. With the exception of the challenge to the

prohibition of “Attention-getting devices,” the repeal of the 1998 Sign Ordinance

and the enactment of the 2005 Sign Ordinance rendered moot the challenges

brought by Tanner. 1998 Sign Ordinance § 1-5(10); 2005 Sign Ordinance § 2-

5(A)(7). Tanner also lacks standing to challenge the prohibition of “Attention-

getting devices.” We exercise our discretion to review the issue of mootness first,

followed by the issue of standing. See Arizonians for Official English v. Arizona,

520 U.S. 43, 66–67, 117 S. Ct. 1055, 1068 (1997).

A. The 2005 Sign Ordinance Renders Moot Most of the Challenges by
Tanner to the 1998 Sign Ordinance.

“Article III of the Constitution requires that there be a live case or

controversy at the time that a federal court decides the case; it is not enough that

there may have been a live case or controversy when the case” was filed. Burke v.

Barnes, 479 U.S. 361, 363, 107 S. Ct. 734, 736 (1987). The doctrine of mootness

provides that “[t]he requisite personal interest that must exist at the commencement

of the litigation (standing) must continue throughout its existence (mootness).”

U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397, 100 S. Ct. 1202, 1209 (1980)

(quoting Henry Monaghan, Constitutional Adjudication: The Who and When, 82

Yale L.J. 1363, 1384 (1973)). Ordinarily, “a challenge to the constitutionality of a

statute is mooted by repeal of the statute.” Coral Springs St. Sys., Inc., 371 F.3d at

15
1329.

Our discussion of whether this appeal is moot is divided in three parts. We

first address the argument by Tanner that its request for damages in the complaint

means that this appeal is not moot. We then consider Tanner’s argument that it

acquired, under Georgia law, vested property rights that remain enforceable.

Because both arguments by Tanner fail, we then address which challenges were

rendered moot by the adoption of the 2005 Sign Ordinance.

1. Tanner Waived Any Argument That Would Have Entitled Tanner
to Damages.

Tanner argues that its appeal has not been rendered moot by the adoption of

the 2005 Ordinance because its complaint included a request for damages.

“[W]hen a plaintiff requests damages, as opposed to only declaratory or injunctive

relief, changes to or repeal of the challenged ordinance may not necessarily moot

the plaintiff’s constitutional challenge to that ordinance.” Crown Media LLC v.

Gwinnett County, 380 F.3d 1317, 1325 (11th Cir. 2004). The problem for Tanner

is that it failed to preserve any argument about a claim that would have entitled

Tanner to damages.

Under the established law of this Circuit, “issues that clearly are not

designated in the initial brief ordinarily are considered abandoned.” Hartsfield v.

Lemacks, 50 F.3d 950, 953 (11th Cir. 1995). “[T]he law is by now well settled in

16
this Circuit that a legal claim or argument that has not been briefed before the court

is deemed abandoned and its merits will not be addressed.” Access Now, Inc. v.

Sw. Airlines Co., 385, F.3d 1324, 1330 (11th Cir. 2004). Although “briefs should

be read liberally to ascertain the issues raised on appeal,” Allstate Ins. Co. v.

Swann, 27 F.3d 1539, 1542 (11th Cir. 1994), there was no mention in either the

initial brief before the panel or the initial en banc brief submitted by Tanner of a

claim that could give rise to the remedy of damages. Tanner did not argue that the

district court erred when it concluded that section 1-43, which had been applied to

deny its application for sign permits, was constitutional.

Tanner, in its complaint, requested damages based on the “substantial

revenue on a monthly basis from the signs for which it has requested permits.”

The district court concluded that Tanner was not entitled to damages because

section 1-43, as applied to deny Tanner a permit, was constitutional. In the initial

brief before the panel, Tanner did not raise the argument that the decision of the

district court regarding section 1-43 was erroneous, and Tanner did not argue that

the denial of its applications for sign permits was unconstitutional.

Tanner appealed the dismissal of its facial challenges of other provisions of

the 1998 Sign Ordinance, and Tanner requested that we “permanently enjoin the

County’s enforcement of its unconstitutional Sign Ordinance.” The initial en banc

17
brief submitted by Tanner likewise was devoid of any argument about either the

decision of the district court regarding section 1-43 or the denial of the eight

applications of Tanner for sign permits. Because the damages that Tanner

requested in its complaint were premised on the alleged unconstitutional denial of

its applications for sign permits, and Tanner did not raise that issue on appeal, the

record shows no remaining claims that could potentially entitle Tanner to damages.

Tanner did not and could not request damages for the facial challenges it

raised in this appeal. Tanner argues on appeal that the enforcement of several

provisions of the 1998 Sign Ordinance will deprive Tanner of the ability to

construct other signs in the future. Apart from the denial of its sign permits under

section 1-43, Tanner did not complain in the district court that the enforcement of

the 1998 Sign Ordinance has caused it any harm. Tanner is not entitled to damages

for the facial challenges of provisions of the 1998 Sign Ordinance because those

provisions have not yet harmed Tanner. “[W]hatever the constitutional basis for §

1983 liability, such damages must always be designed ‘to compensate injuries

caused by the [constitutional] deprivation.’” Memphis Cmty. Sch. Dist. v.

Stachura, 477 U.S. 299, 309, 106 S. Ct. 2537, 2544 (1986) (alterations in original)

(citing Carey v. Piphus, 435 U.S. 247, 265, 98 S. Ct. 1042, 1053 (1978)).

A request for damages that is barred as a matter of law cannot save a case

18
from mootness. Arizonians for Official English, 520 U.S. at 69, 117 S. Ct. at

1069–70. In Arizonians for Official English, the Supreme Court reversed a

decision of the Ninth Circuit, which had held that a request for damages against the

State of Arizona meant that the appeal was not moot. Id. The Supreme Court

concluded that, because the request for damages was barred by the Eleventh

Amendment, the appeal was moot. The same result holds true here because the

only issues presented by Tanner on appeal pertain to its facial challenges regarding

prospective harm, which cannot give rise to the remedy of damages. See Memphis

Cmty. Sch. Dist., 477 U.S. at 310, 106 S. Ct. at 2544 (“Section 1983 presupposes

that damages that compensate for actual harm ordinarily suffice to deter

constitutional violations.”).

Tanner erroneously contends that “the fact [it] did not present a damages

argument to this Court in its initial brief or En Banc Brief does not mean that [it]

has waived those claims.” Tanner argues that because it did not brief the issue of

damages before the district court, it is excused from raising the request for

damages before this Court. This argument fails.

The argument of Tanner is based on a misunderstanding of our scope of

review. As a court of review, “an appellate court will not consider a legal issue or

theory raised for the first time on appeal,” United States v. S. Fabricating Co., 764

19
F.2d 780, 781 (11th Cir. 1985), but that truism did not preclude Tanner from

arguing that the decision of the district court about section 1-43 as applied to

Tanner was erroneous. “Under our caselaw, a party seeking to raise a claim or

issue on appeal must plainly and prominently so indicate. Otherwise, the issue—

even if properly preserved at trial—will be considered abandoned.” Access Now,

Inc., 385 F.3d at 1330 (quoting United States v. Jernigan, 341 F.3d 1273, 1283 n.8

(11th Cir. 2003)). Tanner preserved the issue of damages in the district court by

complaining about the denial of its applications for sign permits and requesting

damages as a remedy. When the district court denied the motion of Tanner for a

permanent injunction and dismissed sua sponte the complaint of Tanner, including

its request for damages, Tanner was obliged to raise on appeal any error in that

dismissal regardless of whether the parties had had an opportunity to brief the

alleged error in the district court.

In its briefs to the panel and en banc, Tanner raised arguments that pertained

only to its facial challenges, which correspond to its requests for injunctive relief.

Tanner abandoned any argument about the dismissal of its complaint that it

suffered damages based on the denial of its applications for permits under section

1-43. That abandonment means that the argument of Tanner regarding the

interplay of mootness and its request for damages fails.

20
 2. Tanner Has No Vested Property Rights in Denied Permit
Applications.

Tanner next argues that its appeal is not moot because it has a vested right to

issuance of a sign permit because the 1998 Sign Ordinance was unconstitutional.

A county “may not withhold an application on the basis of a void ordinance, and

under certain circumstances, this can give rise to a vested right in the permit.”

Coral Springs St. Sys., Inc., 371 F.3d at 1334. Because it did not argue on appeal

that section 1-43 was void as applied to its permit applications, Tanner also did not

preserve any possible argument that it had a vested right to the issuance of a

permit.

“[A] party’s vested property rights constitute an enforceable entitlement to a

permit or a sign unaffected by subsequent changes in sign ordinances and may

keep a constitutional challenge to a repealed sign ordinance from becoming moot

under federal law.” Crown Media LLC, 380 F.3d at 1325 (citing Coral Springs St.

Sys., Inc., 371 F.3d at 1333). “[V]ested rights are not created easily. A ‘vested

right’ has been defined as ‘[a] right that so completely and definitely belongs to a

person that it cannot be impaired or taken away without the person’s consent.’”

Coral Springs St. Sys., Inc., 371 F.3d at 1333 (citing Black’s Law Dictionary (7th

ed. 1999)). “Whether a plaintiff has obtained vested property rights in a sign or

permit is a question of state law.” Crown Media LLC, 380 F.3d at 1325.

21
 Under Georgia law, “vested rights to development arise when any of four

conditions is shown to exist: (a) Right to Rely upon Building and other Permits

Once Issued . . . (b) Right to Issuance of a Building Permit . . . (c) Right to Rely

upon Approved Development Plan . . . (1) Formally approved . . . (2) Informally

approved . . . (d) Right to Rely upon Official Assurances that a Building Permit

Will Probably Issue.” Union County v. CGP, Inc., 277 Ga. 349, 351 (2003) (citing

WMM Props., Inc. v. Cobb County, 255 Ga. 436, 438–39 (1986)). “It is apparent .

. . that all the bases enumerated in WMM Properties for the accrual of vested rights

involve some species of estoppel.” Union County, 277 Ga. at 351.

The County denied the sign permit applications submitted by Tanner

because they did not comply with section 1-43 of the 1998 Sign Ordinance. The

district court concluded that section 1-43, as applied to those applications, was a

reasonable time, place, and manner restriction. Tanner failed to argue on appeal

that section 1-43, as applied to its applications, was unconstitutional. Tanner

instead argued that the denial of its applications allowed it to challenge other

provisions of the 1998 Sign Ordinance that might affect its applications for permits

in the future. Because Tanner did not raise any argument about the

constitutionality of section 1-43 as applied to the permits it sought, Tanner cannot

now argue that section 1-43 is void or that Tanner has a vested right in the permits

22
that were denied based on section 1-43.

Because Tanner failed to raise the constitutionality of section 1-43 as applied

to its permits, Tanner had no vested property rights in sign permit applications that

failed to comply with the constitutional proscriptions in the 1998 Sign Ordinance.

The Supreme Court of Georgia has explained, “A permit for a use prohibited by a

valid zoning ordinance, regulation, or restriction is void, of no effect, and subject

to revocation.” Corey Outdoor Adver., Inc. v. Bd. of Zoning Adjustments, 254 Ga.

221, 226 (1985) (citation omitted). In Corey, an outdoor advertising company was

erroneously issued a permit to construct a sign that violated provisions of the city

zoning ordinance. The Georgia Supreme Court stated that the zoning ordinance

was valid and “a permit issued for either an illegal use or an illegal nonconforming

use is void; . . . it does not vest constitutional rights.” Id. at 227. “[T]he law in

Georgia, like the rule in nearly all jurisdictions, supports the conclusion that a

permit for an illegal use is void and vests no property rights.” Id. Tanner has no

vested property rights in sign applications that failed to comply with the valid

restrictions in the 1998 Sign Ordinance.

Contrary to the argument of Tanner, our decision in Crown Media is

inapposite to this appeal. We concluded in Crown Media that a sign company had

a vested property right in sign permits issued by the County under a sign ordinance

23
that was amended after the issuance of the permits. Crown Media, 380 F.3d at

1329. A key fact that supported our conclusion in that decision was “that Crown

Media applied for and actually obtained permits.” Id. at 1328 (emphasis added).

We stated that because “Crown Media’s property rights in its sign would have

vested under Georgia law[,] any subsequently enacted sign ordinance . . . would be

unenforceable against Crown Media’s pre-existing, legally constructed sign.” Id.

at 1329. The signs constructed in Crown Media were a conforming use under the

sign ordinance. We did not consider whether an applicant has a vested property

right in sign permits that were denied under a challenged ordinance.

The reliance by Tanner on Tilley Properties, Inc. v. Barstow County is also

unavailing. 261 Ga. 153 (1991). The Georgia Supreme Court in Tilley addressed

whether owners of land that was zoned agricultural were entitled to a certificate of

zoning compliance to engage in mining activities. 261 Ga. at 153. The owners

argued that “the [agricultural] zoning ordinance is null and void because it was not

enacted in compliance with the Zoning Procedures Law (ZPL), O.C.G.A. §

36-66-1 et seq.” Id. “The Georgia Supreme Court concluded that at the time the

property owner applied for its land use certificate, the agricultural zoning

ordinance restricting its property to agricultural purposes was invalid because of

defects in its enactment.” Crown Media LLC, 380 F.3d at 1328 n.23 (citing Tilley

24
Props., Inc., 401 S.E.2d at 529). “While Tilley teaches that the validity of a zoning

ordinance is relevant to whether a property owner is entitled to a requested

certificate, it is important to note that Tilley did not address vested property rights

in the face of a subsequent, new ordinance.” Id.

Tanner also erroneously relies on Recycle & Recover, Inc. v. Georgia Board

of Natural Resources, 466 S.E.2d 197 (Ga. 1996), and WMM Properties, Inc., 339

S.E.2d 252, for the proposition that “[a] landowner has a right, enforceable by

mandamus, to be issued a building permit in accordance with zoning regulations as

such regulations exist at the time a proper application for building permit is

submitted to the proper authority.” WMM Props., Inc., 339 S.E.2d at 254–55.

These decisions are inapposite because they involved challenges to ordinances that

were enacted after the plaintiffs had received permits. See Recycle & Recover,

Inc., 466 S.E.2d at 197 (“The Georgia Board of Natural Resources [] issued a

permit to Recycle & Recover, Inc.[,] for the construction and operation of a solid

waste treatment facility.”); WMM Props., Inc., 339 S.E.2d at 253 (“[B]efore any

purchase, [WMM] obtained a certification of zoning from the Cobb County

Planning Commission.”). Tanner never received a sign permit that was superseded

by the enactment of an ordinance.

Tanner has no vested property right to construct its signs. Tanner failed to

25
argue on appeal that section 1-43, upon which Tanner was denied a permit, is

unconstitutional as applied to its permit applications, and Tanner was never granted

a permit. We next consider which challenges were rendered moot by the

enactment of the 2005 Sign Ordinance.

3. The Amendment Renders Moot All but One of the Challenges by Tanner.

Tanner complains about four aspects of the 1998 Sign Ordinance. Tanner

appealed the denial of a permanent injunction because provisions of the 1998 Sign

Ordinance (1) lacked procedural safeguards, see 1998 Sign Ordinance §§ 1-11, 1-

12(B); (2) favored “on-premise” noncommercial speech over “off-premise”

noncommercial speech, id. §§ 1-43, 1-44, 1-55, 1-62, 1-70(A); (3) allegedly

granted unbridled discretion to County officials to define “special events,”

“Attention-getting devices,” and “obscene” material, id. §§ 1-3, 1-5(10), 1-

5(11)(a)(2); and (4) prohibited window signs in residential districts, see id. §§ 1-

51–1-55. With the exception of the prohibition of “Attention-getting devices,” the

2005 Sign Ordinance renders these challenges moot.

“This Court and the Supreme Court have repeatedly held that the repeal or

amendment of an allegedly unconstitutional statute moots legal challenges to the

legitimacy of the repealed legislation.” Nat’l Adver. Co. v. City of Miami, 402

F.3d 1329, 1332 (11th Cir. 2005), cert. denied, 126 S. Ct. 1318 (2006). A

26
“superseding statute or regulation moots a case . . . to the extent that it removes

challenged features of the prior law.” Coal. for the Abolition on Marijuana

Prohibition v. City of Atlanta, 219 F.3d 1301, 1310 (11th Cir. 2000). If the repeal

is such that “the allegedly unconstitutional portions of the [challenged] ordinance

no longer exist,” the appeal is rendered moot because “any decision we would

render would clearly constitute an impermissible advisory opinion.” Nat’l Adver.

Co., 402 F.3d at 1335.

The 2005 Sign Ordinance “remove[d] challenged features of the” 1998 Sign

Ordinance. Coal. for the Abolition on Marijuana Prohibition, 219 F.3d at 1310.

Tanner’s complaint that the 1998 Sign Ordinance lacks time limits for decisions

and appeals is no longer “live,” Burke, 479 U.S. at 363, 107 S. Ct. at 736, because

the 2005 Sign Ordinance requires the Zoning Administrator to grant or deny a

permit within thirty days and provides that applicants may appeal to the Zoning

Board of Appeals, 2005 Sign Ordinance § 2-1(B). Tanner’s complaint that the

1998 Sign Ordinance unconstitutionally favored “on-premise” noncommercial

speech over “off-premise” noncommercial speech, see 1998 Sign Ordinance §§ 1-

43, 1-44, 1-55, 1-70(A), is moot because the 2005 Sign Ordinance eliminated all

distinctions between “off-premise” and “on-premise” speech. Tanner’s complaint

that the definitions of “obscene material” and “special events” granted unbridled

27
discretion to the Zoning Administrator to exempt “special events” and define

“obscene” material is also moot. See 1998 Sign Ordinance §§ 1-3, 1-5(11)(a)(2).

The 2005 Sign Ordinance does not exempt “special events” and it provides a

lengthy definition of the term “obscene.” See 1998 Sign Ordinance § 1-

5(11)(a)(2); see generally 2005 Sign Ordinance § 2-5(A)(8). Tanner’s complaint

that the restrictions in residential areas under the 1998 Sign Ordinance “are so

sweeping that even the most basic forms of signs . . . are prohibited or severely

limited” because they prohibit window signs, flags, and banners, 1998 Sign

Ordinance § 1-51– 1-55, is no longer live, because the 2005 Sign Ordinance allows

window signs, flags, door signs, and temporary signs, 2005 Sign Ordinance § 2-4.

All that is left is Tanner’s challenge to the prohibition on “Attention-getting

devices.” Tanner challenged the prohibition on “Attention-getting devices,” which

the 1998 Sign Ordinance described as “balloons [], streamers, lights, pennants, . . .

neon tubing, [and] bare bulb lights encircling a window” on the ground that the

prohibition grants unbridled discretion to county officials to define an “Attention-

getting device.” 1998 Sign Ordinance § 1-5(10). The 2005 Sign Ordinance

continues to prohibit “Attention-getting devices, including but not limited to

balloons, . . . all inflatable air signs and lights . . . , [and] neon tubing or bare bulb

28
lights encircling a window or outlining the structure.” 2005 Sign Ordinance § 2-

5(A)(7). Although the continuation of this prohibition means that this lone aspect

of the complaint of Tanner is not moot, a serious question remains about whether

the challenge by Tanner presents an actual case or controversy. We next consider

whether Tanner has standing to challenge the prohibition against “Attention-

Getting Devices.” See 1998 Sign Ordinance § 1-5(10); 2005 Sign Ordinance § 2-

5(A)(7).

B. Tanner Lacks Standing to Challenge the Prohibition Against
“Attention-Getting Devices.”

The Constitution of the United States limits the subject matter jurisdiction of

federal courts to “Cases” and “Controversies.” U.S. Const., Art. III § 2. “[T]he

core component of standing is an essential and unchanging part of the

case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife,

504 U.S. 555, 560, 112 S. Ct. 2130, 2136 (1992). A plaintiff who invokes the

jurisdiction of a federal court bears the burden to show “(1) an injury in fact,

meaning an injury that is concrete and particularized, and actual or imminent, (2) a

causal connection between the injury and the causal conduct, and (3) a likelihood

that the injury will be redressed by a favorable decision.” Clearwater, 351 F.3d at

1116. Each element is “an indispensable part of the plaintiff’s case” and “must be

supported in the same way as any other matter on which the plaintiff bears the

29
burden of proof, i.e., with the manner and degree of evidence required at the

successive stages of the litigation.” Lujan, 504 U.S. at 561, 112 S. Ct. at 2136.

The evidentiary record does not establish that Tanner was affected by the

provision that allegedly grants unbridled discretion to prohibit “Attention-getting

devices” because the permit applications submitted by Tanner do not establish that

this provision pertains to Tanner. See Meese v. Keene, 481 U.S. 465, 473–74, 107

S. Ct. 1862, 1867–68 (1987) (finding a statute threatened a cognizable injury

where the plaintiff “submitted detailed affidavits” and “views of an experienced

political analyst” that were “uncontradicted” to establish reputational harm from

enforcement). Tanner proposed to construct signs that “will contain two 14' x 48'

faces that will be mounted in a V-Type configuration.” This description does not

suggest that the signs proposed by Tanner would use “Attention-getting devices.”

See id. Although Tanner marked that its signs would be externally illuminated,

external illumination “cannot be a device that changes color, flashes, or alternates.”

2005 Sign Ordinance § 1-5(10). The record is devoid of any evidence that Tanner

ever intended to use “Attention-getting devices” in Fayette County.

The permit applications do not establish that Tanner had “an intention to

engage in a course of conduct arguably affected with a constitutional interest, but

proscribed by a statute.” Pittman v. Cole, 267 F.3d 1269, 1283 (11th Cir. 2001)

30
(quoting Wilson v. State Bar of Ga., 132 F.3d 1422, 1428 (11th Cir. 1998)).

“Standing cannot be ‘inferred argumentatively from averments in the pleadings,’

but rather ‘must affirmatively appear in the record.’” FW/PBS, Inc. v. City of

Dallas, 493 U.S. 215, 231, 110 S. Ct. 596, 608 (1990)(citations omitted), overruled

in part on other grounds by City of Littleton v. Z.J. Gifts D-4, LLC, 541 U.S. 774,

124 S. Ct. 2219 (2004). The record fails to establish that Tanner “has sustained or

is immediately in danger of sustaining a direct injury” from the prohibition on

“Attention-getting devices.” Laird v. Tatum, 408 U.S. 1, 13, 92 S. Ct. 2318, 2325

(1972). Tanner lacks standing to challenge this provision.

Because Tanner lacks standing to challenge this provision of the 1998 Sign

Ordinance, we need not address the overbreadth argument of Tanner that standing

under one provision confers standing to challenge all provisions of the Ordinance.

The 2005 Sign Ordinance rendered moot all challenges but one, and Tanner lacks

standing to challenge that lone provision. No challenges to the 1998 Sign

Ordinance remain for Tanner to premise its overbreadth challenge. We leave that

issue for another day.

IV. CONCLUSION

The appeal by Tanner of the denial of motion for a permanent injunction is

DISMISSED.

31
BIRCH, Circuit Judge, specially concurring:

I write in concurrence with the majority opinion to clarify a point that I had

anticipated would be addressed in this en banc hearing. While the panel opinion in

this case, Tanner Advertising Group, L.L.C. v. Fayette County, 411 F.3d 1272

(11th Cir.) (“Tanner”), vacated, 429 F.3d 1012 (11th Cir. 2005), is no longer

precedential, as noted in the majority opinion at p. 12, that decision opined that:

Prior to [Granite State Outdoor Adver., Inc. v. City of Clearwater] 351
F.3d 1112 (11th Cir. 2003) (“Clearwater”)] if a . . . plaintiff met the
Article III minimal requirements for standing under one provision of
the ordinance, it was accepted that courts would grant standing for the
plaintiff to also make a broad facial challenge to the constitutionality
of the Ordinance as a whole. See, e.g., Metromedia[, Inc. v. City of
San Diego, 453 U.S. 490, 505 n.11, 101 S. Ct. 2882, 2891 n.11
(1981)]; Granite State Outdoor Adver. v. City of St. Petersburg, 348
F.3d 1278 (11th Cir. 2003) (“St. Petersburg”); Dimmitt v. City of
Clearwater, 985 F.2d 1565 (11th Cir. 1993); National Adver. Co. v.
City of Fort Lauderdale, 934 F.2d 283 (11th Cir. 1991) (“National”);
Solomon v. City of Gainesville, 763 F.2d 1212 (11th Cir. 1985).

****

In light of the strong precedent from the Supreme Court and this
Circuit concerning the doctrine of overbreadth which preceded the
Clearwater decision, we are compelled to follow our “prior precedent”
or “earliest case”1 rule and uphold our decisions preceding Clearwater
and disregard the narrow approach to the overbreadth doctrine

1
“A prior panel decision of this Court is binding on subsequent panels and can be
overturned only by the Court sitting en banc . . . . When faced with an intra-circuit split we must
apply the ‘earliest case’ rule, . . . a panel should look to the line of authority containing the
earliest case, because a decision of a prior panel cannot be overturned by a later panel.”
Morrison v. Amway Corp., 323 F.3d 920, 929 (11th Cir. 2003) (internal quotations and citations
omitted).

32
 employed by the Clearwater court.

Tanner, 411 F.3d at 1276-77.

Given that language, albeit expressed in a now vacated opinion of no

precedential force, I deem it necessary to take issue with such a conclusion. As I

will demonstrate below, Clearwater did not depart from prior precedent and, except

to the extent modified by this en banc decision, remains the law of this Circuit. To

outline my position on this issue, I will (1) review Supreme Court precedent on the

overbreadth doctrine, including those cases cited by the Tanner panel opinion in

support of its determination to refuse to follow Clearwater; (2) review Eleventh

Circuit precedent on the overbreadth doctrine, including those cases cited by the

Tanner panel opinion; and (3) note other jurisprudential considerations which

impact my conclusion in this case.

A. Supreme Court Precedent on the Overbreadth Doctrine

In order to have standing to bring a claim, a litigant must satisfy (1) Article

III’s “case and controversy” requirements, namely that: (a) the litigant suffered an

injury in fact that is concrete and particularized; (b) there is a causal connection

between the injury and the challenged conduct; and (c) the injury can be redressed

by a favorable decision; and (2) certain sub-constitutional or “prudential” doctrines

established by courts. See Bennett v. Spear, 520 U.S. 154, 162, 117 S. Ct. 1154,

33
1161 (1997). One of these prudential doctrines is that a litigant may only assert his

or her own rights and may not argue claims that could have been asserted by third

parties not before the court. Allen v. Wright, 468 U.S. 737, 751, 104 S. Ct. 3315,

3324 (1984). While the Article III standing requirements constitute an “irreducible

constitutional minimum” which cannot be altered, the prudential standards are

more malleable and may be relaxed by courts in certain situations. See Bennett,

520 U.S. at 162, 117 S. Ct. at 1161. One exception is the overbreadth doctrine.

The overbreadth doctrine is an exception to the prudential doctrine recited

by Allen, which says that a litigant, who has been injured by a statute as it was

applied to him, may also challenge the statute facially on First Amendment

grounds. See Village of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620,

634, 100 S. Ct. 826, 834-35 (1980). This is because the Court has recognized that

individual citizens whose First Amendment rights have been violated may simply

refrain from speech rather than engage in the costly endeavor of challenging a

statute. See Virginia v. Hicks, 539 U.S. 113, 119-20, 123 S. Ct. 2191, 2196-97

(2003). Accordingly, courts allow a party to make a broad facial challenge to a

statutory provision under the overbreadth doctrine to ensure that unconstitutional

burdens on speech are eliminated. The overbreadth doctrine, however, does not

relieve a litigant of demonstrating, as required by Article III, that he suffered an

34
injury in fact. See Bischoff v. Osceola County, 222 F.3d 874, 884 (11th Cir. 2000)

(“[E]ven under the more lenient requirements for standing applicable to First

Amendment overbreadth challenges, it still remains the law that plaintiffs must

establish that they have suffered some injury in fact as a result of the defendant's

actions.”) (citing Virginia v. Am. Booksellers Assoc. Inc., 484 U.S. 383, 392, 108

S. Ct. 636, 642 (1988)).

While some ambiguity can be read into this last quotation from Bischoff, no

Supreme Court case has interpreted the overbreadth doctrine so broadly as the

panel did in Tanner. In other words, no Supreme Court case has allowed a litigant

to challenge statutory provisions under which it was not injured based on the

overbreadth doctrine. For example, in Schaumburg, a litigant claimed that § 22-

20(g) of a local ordinance violated the First Amendment after being denied a

certain permit pursuant to that code provision. 444 U.S. at 624-25, 100 S. Ct. at

829-30. Under the overbreadth doctrine, the Court allowed the litigant to challenge

the statutory provision facially. Id. at 634. In sum, the plaintiff was injured under

§ 22-20(g) and the Court heard only his challenge to § 22-20(g). The Court did not

entertain challenges to other related provisions. Likewise, in Secretary of State v.

Joseph H. Munson Co., the State of Maryland had threatened to sue a for-profit

company under § 103D of the Maryland Code. 467 U.S. 947, 951, 104 S. Ct.

35
2839, 2844 (1984). Invoking the overbreadth doctrine, the for-profit corporation

challenged the facial constitutionality of the statute, which was designed to

regulate non-profits. Id. at 956-58, 104 S. Ct. at 2847-48. The Court’s analysis did

not venture beyond the overbreadth challenge to § 103D, the provision under

which the for-profit was injured. See id. at 970, 104 S. Ct. at 2854. Finally, in

American Booksellers Association, the Court allowed a bookstore to mount a facial

challenge to Va. Code Ann. § 18.2-391 only after the bookstore had demonstrated

an injury, which was the “well-founded fear that the law would be enforced against

them.” 484 U.S. at 393, 108 S. Ct. at 643.

In support of its sweeping view of the overbreadth doctrine, the Tanner

panel opinion cited City of Littleton v. Z. J. Gifts D-4, L.L.C., 541 U.S. 774, 124 S.

Ct. 2219 (2004), for the proposition that “the Court did not limit the plaintiff's

facial standing to the specific provision that rendered the plaintiff's [action]

unlawful.” Tanner, 411 F.3d at 1277. Littleton is inapposite because it is not an

overbreadth standing case, and the Court granted certiorari to address only whether

a licensing scheme met the First Amendment’s requirement of prompt judicial

review. Littleton, 541 U.S. at 776, 124 S. Ct. at 2221. As the Tanner panel

opinion conceded, “the Court permitted the plaintiff to make a facial challenge

without ever even discussing the plaintiff's individual injury.” Tanner, 411 F.3d at

36
1277. Because the issues of standing and overbreadth were not discussed in

Littleton, that case has no bearing on those issues. See Hagans v. Lavine, 415 U.S.

528, 536 n.5, 94 S. Ct. 1372, 1378 n.5 (1974) (“[When] questions of jurisdiction

have been passed on in prior decisions sub silentio, this Court has never considered

itself bound when a subsequent case finally brings the jurisdictional issue before

us.”); cf. Texas v. Cobb, 532 U.S. 162, 169, 121 S. Ct. 1335, 1341 (2001)

(“Constitutional rights are not defined by inferences from opinions which did not

address the question at issue.”). Littleton did modify the Court’s previous holding

in FW/PBS, Inc. v. City of Dallas, 493 U.S. 214, 110 S. Ct. 596 (1990), regarding

“special judicial review rules” for the denial of a business license. Littleton, 541

U.S. at 781-72, 124 S. Ct. at 2224. However, Littleton did not disturb FW/PBS’s

holding that courts must determine whether plaintiffs have standing under every

provision that they wish to challenge. See generally id. In FW/PBS, Inc., while

the Court concluded that plaintiffs had standing to challenge certain provisions in

an ordinance, the Court refused to reach the merits of challenges to other

provisions within the same ordinance “because petitioners ha[d] failed to show

they have standing to challenge them.” 493 U.S. at 230-31, 110 S. Ct at 607-08;

see also McConnell v. FEC, 540 U.S. 93, 154-60, 224-233, 124 S. Ct. 619, 666-70,

707-12 (2003) (allowing challenges, including an overbreadth challenge, to certain

37
provisions in the Bipartisan Campaign Reform Act of 2002, but concluding that

plaintiffs lacked standing to challenge other provisions).

In addition, the Tanner panel opinion cited a footnote in Metromedia, 453

U.S. at 504 n.11, 101 S. Ct. at 2890 n.11, for the proposition that standing under

one provision suffices for standing under “the Ordinance as a whole.” Tanner, 411

F.3d at 1276. Although the footnote discusses the overbreadth doctrine, the main

text of the case recites that the litigant was engaged in both commercial as well as

noncommercial expressive speech, and therefore the overbreadth doctrine was

inapplicable because the litigant could mount a facial challenge without invoking

the doctrine. Metromedia, 453 U.S. at 503-04, 101 S. Ct. at 2890-91.

Notwithstanding the fact that Metromedia is a fractured, plurality opinion of

dubious precedential value, see Solantic, LLC v. City of Neptune Beach, 410 F.3d

1250, 1262 n.10 (11th Cir. 2005), the case is inapposite to the Tanner panel

opinion’s claim that the overbreadth doctrine allows litigants to challenge statutory

provisions under which they have not been injured.

Accordingly, in the Supreme Court cases that have addressed the

overbreadth doctrine and its relationship to Article III standing, litigants were

allowed to mount facial (as opposed to strictly “as applied”) challenges only to

statutory provisions under which they had been injured. The Court has not used

38
the overbreadth doctrine to allow litigants to challenge related statutory provisions

under which it concluded that the litigants had not been injured.

B. Eleventh Circuit Precedent on the Overbreadth Doctrine

The Eleventh Circuit cases cited by the Tanner panel opinion either (1)

support the conclusion in Clearwater or (2) do not stand for the proposition that a

litigant may challenge statutory provisions under which he has not been injured.

See Café Erotica of Fla., Inc. v. St. Johns County, 360 F.3d 1274, 1278 & nn. 3-5

(11th Cir. 2004) (limiting constitutional analysis under overbreadth doctrine to

“Sections 7.00.01, 7.00.08, and 7.03.01 of Ordinance 99-51” because plaintiff was

allegedly injured under those sections); Solantic, 410 F.3d at 1252-54 (limiting

constitutional analysis to “the relevant provisions of the Neptune Beach sign code,”

which the City indicated Solantic had violated); St. Petersburg, 348 F.3d at 1280 &

n.2, 1282-83 (limiting the First Amendment inquiry to the several ordinance

provisions under which the litigant was injured); Dimmitt, 985 F.2d at 1571 (citing

the overbreadth doctrine to allow a litigant to challenge facially Fla. Code §§

134.008(18), 134.013(a) when the litigant was denied a permit pursuant to that

code section); National, 934 F.2d at 285-86 (allowing a litigant to challenge

facially municipal code provisions because the litigant “ha[d] a commercial interest

in the speech regulated” and remanding to determine whether provisions were

39
severable from entire code); Solomon, 763 F.2d at 1213-15 (finding that the

litigant had standing under the overbreadth doctrine to challenge facially

Gainesville code § 29-100(b)(2) when the city indicated that it would prosecute the

litigant based on his violation of the statute).

To elaborate further, the two circuit opinions cited by the Tanner panel

opinion that post-date the decision in Clearwater, and thereby do not implicate the

prior precedent rule, are consonant with Clearwater’s holding. Although the

opinion in Café Erotica, “tak[es] into account other provisions” than those under

which the plaintiff was injured, 360 F.3d at 1278, we did not grant the plaintiffs

standing to challenge those provisions. Instead, we expressly limited review to the

three provisions that the district court focused on because the plaintiffs were

injured under those provisions. See id. (“[W]e consider only the constitutionality

of Ordinance 99-51 . . . . [s]pecifically, we consider appellees' facial challenges to

sections 7.00.01, 7.00.08, and 7.03.01 of Ordinance 99-51.”) (emphasis added).

Solantic also specifically limited its review and only considered the entire sign

code when deciding whether the unconstitutional sections under which the plaintiff

was injured could be severed from the code. 410 F.3d at 1268-69 (concluding that,

because “exemptions [were] not severable from the remainder of the ordinance, we

[were] therefore required to find the sign code unconstitutional”).

40
 More importantly, several of the cases that pre-date Clearwater, and thereby

implicate the prior precedent rule, demonstrate that standing to make a facial

challenge to a particular provision under the overbreadth doctrine does not give the

plaintiff standing to challenge other sections, or the entire statutory scheme, if the

plaintiff was not injured thereunder. For example, in St. Petersburg, we

specifically noted that we were not “invalidat[ing] the sign ordinance in its

entirety” and that we would not “address hypothetical constitutional violations in

the abstract” which did not affect the plaintiff. See St. Petersburg, 348 F.3d at

1282-83. While there is some language in the opinion which perhaps suggests the

panel would have allowed standing to challenge the entire statute,2 it is more

important to look at what the panel did. The plaintiff was denied a permit under §

16-692(e) and was thereby injured under that provision. Id. at 1280. In

challenging the statute, the plaintiff argued that § 16-692(e) was unconstitutional

because there was no time limit on when the municipality had to act on a permit

application. Id. at 1281. While we “affirm[ed] without discussion” the district

court’s finding that three particular provisions were unconstitutional, see id. at

1280 & n.1, we found that § 16-692(e) was constitutional, and then expressly

2
For example, the panel expressly disclaims that it is invalidating the ordinance in its
entirety, see id. at 1283, which suggests (at best) that the plaintiff may have had standing to
challenge the ordinance in its entirety.

41
disclaimed that we were reviewing or invalidating any other provisions because the

district court made no findings of fact that the plaintiff was injured under those

provisions. See id. at 1283. Thus, looking at what the St. Petersburg panel

actually did and held, our analysis under the overbreadth doctrine was limited to a

facial challenge of the permit provision under which the plaintiff was injured.

In Dimmitt, we invalidated both § 134.013(a) (requiring a permit to erect a

sign) and § 134.008(18) (exempting display of some flags from permit

requirement). 985 F.2d at 1571-73. It is clear, however, that the plaintiff was

injured under both sections: He was denied a permit under § 134.013(a) on the

grounds that his display was not part of the exemptions stated in § 134.008(18).

Id. Thus, Dimmitt supports the position that a litigant should only be allowed to

challenge the statutory provisions under which he was injured.

While National also suffers from suggestive language indicating that the

litigant had standing to challenge the entire code, closer inspection shows that

National does not stand for the sweeping view of overbreadth the Tanner panel

opinion espouses. In National, after a cursory finding that a litigant had standing

under the overbreadth doctrine to challenge facially certain statutory provisions,

our court remanded the case back to district court to determine whether these

provisions were constitutional and then to determine if the unconstitutional

42
provisions, if any, were severable “from the remainder of the sign code.” See 934

F.2d at 286. National never expressly concluded that the litigant had standing to

challenge those provisions under which it had not been injured. See generally id.

Accordingly, the Tanner panel opinion’s assertion that Clearwater broke

with prior Eleventh Circuit precedent is not supported by the cases the Tanner

panel opinion cited. In Clearwater, the panel found that, although the overbreadth

doctrine permitted a facial challenge to § 3-1806.B.1 of the Clearwater Code

because the plaintiff had been injured under that provision, the plaintiff could not

challenge the constitutionality of § 4 of the Code because it had sustained no injury

under any provision of that section. 351 F.3d at 1117. Clearwater’s holding that

the overbreadth doctrine only allows a facial challenge to the provision under

which the litigant has been injured, as required by Article III, is thus consistent

with the holdings in Café Erotica, Solantic, St. Petersburg, Dimmitt, National, and

Solomon. Moreover, Clearwater follows circuit precedent that pre-dates the cases

cited by the Tanner panel opinion. See, e.g., FEC v. Lance, 635 F.2d 1132, 1140-

41 (5th Cir. Jan. 1981) (en banc) (disallowing overbreadth challenge to various

prohibitions within a single section, 2 U.S.C. § 441b, that were not applicable to

the plaintiff, and concluding that plaintiff “ha[d] standing to challenge section

441b only as it prohibits [the two activities applicable to the plaintiff]”).

43
C. Other Jurisprudential Considerations

In addition to finding support in Supreme Court and Eleventh Circuit

precedent, the decision in Clearwater is supported by two other jurisprudential

considerations.

First, the Article III requirement of an injury in fact is an “irreducible

constitutional minimum,” whereas the overbreadth doctrine is an exception to a

prudential, court-made standing doctrine. See Bennett, 520 U.S. at 162, 117 S. Ct.

at 1161. Because a prudential doctrine cannot be allowed to trump a constitutional

requirement, the Tanner panel opinion’s expansion of the overbreadth doctrine,

which eviscerates the injury-in-fact requirement, cannot be permitted.3

Second, the Tanner panel opinion eviscerates the jurisprudential engagement

in severability analysis. The typical procedure for constitutional challenges to a

statutory provision is to: (1) test the provision for constitutionality; and (2) if it is

found unconstitutional, determine whether the constitutionally offensive provision

can be severed from the rest of the statute. See New York v. United States, 505

U.S. 144, 186, 112 S. Ct. 2408, 2434 (1992). Courts engage in severability

3
To be sure, by abrogating the prudential standing limitations, legislative actions and
judicial exceptions to prudential limitations (including overbreadth) may enable plaintiffs to sue
to the full extent allowed by Article III. See, e.g., Bennett, 520 U.S. at 165, 117 S. Ct. at 1162-
63 (concluding that a legislative act expanded standing “to the full extent permitted under Article
III”). However, such actions cannot empower plaintiffs to sue beyond the full extent allowed by
Article III. Thus, any inquiry into prudential standing should only be undertaken after the limit
of a litigant’s Article III standing has been identified.

44
analysis out of respect for separation of powers, i.e., so that constitutional

provisions enacted by the legislature are not overturned needlessly. The Tanner

panel opinion, by purporting to expand the purview of the court’s constitutionality

analysis to an entire code or ordinance even if the plaintiff was injured under one

narrow provision, eliminates the need to engage in the severability analysis as

required by New York.

D. Conclusion

In sum, the Tanner panel opinion’s conclusion that the overbreadth doctrine

allows a litigant who was only injured under § A-1 of a statute also to challenge

§ A-2 or even all of § A of a statute is incorrect, as is its conclusion that Clearwater

represented a departure from prior Eleventh Circuit precedent. While Article III

determines which statutory provisions may be challenged (i.e., the ones under

which the plaintiff was injured), the overbreadth doctrine determines what

arguments the plaintiff can make about those provisions (i.e., “as applied” or facial

unconstitutionality).4

4
Loose and suggestive language has been rather commonplace in this area and has
provided enterprising plaintiffs with some fodder to challenge statutory provisions under which
they have not suffered an injury. See, e.g., Cafe Erotica, 360 F.3d at 1281 (Even though we
considered only challenges to sections 7.00.01, 7.00.08, and 7.03.01 of Ordinance 99-51, we
concluded that “[b]oth appellees have standing to challenge Ordinance 99-51.”); Dimmitt, 985
F.2d at 1573 (While we only reviewed particular portions of a sign ordinance, we broadly stated
that “[w]e must invalidate the sign ordinance as facially unconstitutional.”). Compare St.
Petersburg, 348 F.3d at 1280 n.1 (noting that the district court invalidated three specific
provisions and “found the remaining text to be constitutionally sound”), with id. at 1281 (“The

45
 While society may be helped by increased judicial review of statutes that

affect speech, society will not be better served in the long-run under an expansive

application of the overbreadth doctrine. Article III injury-in-fact requirements are

designed to provide the court with the most vigorous litigant who has the incentive

to accurately present the court with the appropriate issues and arguments. A

litigant who has not been injured under a particular provision may not have the

appropriate incentive or understanding of the provision’s effects to litigate fully

those provisions. Allowing such a challenge may result in precedent being

established that actually harms society at large.

district court found the absence of time limits required it to grant summary judgment for Granite
and invalidate the entire ordinance.”). Given plaintiffs’ often creative use, if not misuse, of our
precedent and the terms that define the scope of what they may challenge, even the declaration
that standing is limited to the specific statutory “provisions” under which there is an injury may
not be specific enough. Thus, to state it more explicitly, to satisfy the standing requirements in
Article III, when a plaintiff alleges that a “code,” “ordinance,” “statute,” “act,” “provision,” etc.
has caused him injury, the plaintiff has the obligation to identify the specific language within
these organizational units to which the alleged injury is fairly traceable. The limit of Article III
standing (or what the plaintiff may ultimately challenge) should not be framed by the fortuitous
placement of this language within any given Roman numeral, topical heading, or other artificial
demarcation. Instead, standing must be circumscribed by the specific language alone that the
plaintiff alleges to have caused injury. See Lance, 635 F.2d at 1140-41. If the placement of the
language is determinative, Article III standing is subject to the whims of legislative
organizational structure.
Such a requirement would not apply, of course, to an alleged injury that is based on the
absence of particular statutory language, as in an injury traceable to a lack of procedural
safeguards. Nevertheless, in that circumstance, the plaintiff still cannot challenge the
constitutionality of other statutory language that does not concern procedure if he does not allege
a separate injury traceable thereto. See FW/PBS, Inc., 493 U.S. at 230-31, 110 S. Ct at 607-08.
To the extent that courts have improperly characterized such sections or language as
“challenged,” that should only mean that those sections are vulnerable to being invalidated in the
remedy, or severability, phase.

46
 Moreover, standing is properly regarded as a doctrine of judicial self-

restraint. As Justice Powell observed, “[r]elaxation of standing requirements is

directly related to the expansion of judicial power.” United States v. Richardson,

418 U.S. 166, 188, 94 S. Ct. 2940, 2952 (1974). As the Court has frequently

emphasized, any analysis of the concept of “injury” must be based upon “reference

to the Art. III notion that federal courts may exercise power only in the last resort,

and as a necessity, and only when adjudication is consistent with a system of

separated powers and [the dispute is one] traditionally thought to be capable of

resolution through the judicial process.” Allen, 468 U.S. at 752, 104 S. Ct. at 3325

(internal quotations and citations omitted).

Accordingly, the narrow approach to standing that we described in

Clearwater remains the law of this circuit until changed by an en banc opinion of

this court.

47