[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
_____________ May 22, 2008
THOMAS K. KAHN
No. 07-12330 CLERK
_____________
D.C. Docket No. 02-00947-CV-T-23TBM
MAVERICK MEDIA GROUP, INC.,
Plaintiff-Appellant,
versus
HILLSBOROUGH COUNTY, FLORIDA,
Defendant -Appellee.
____________
Appeal from the United States District Court
for the Middle District of Florida
____________
(May 22, 2008)
Before BIRCH, DUBINA and HILL, Circuit Judges.
PER CURIAM:
Maverick Media Group, Inc., (“Maverick”), sued Hillsborough County,
Florida, (the “County”), claiming that the County unconstitutionally denied it
permits for outdoor signs. The district court entered summary judgment for the
County and Maverick appealed. A review of the record reveals that Maverick
does not have standing to bring this claim. Therefore, we shall vacate the district
court’s judgment and remand for dismissal of the case.
I.
A. In order to have Article III standing to challenge the County’s sign
ordinance, Maverick must have a constitutional injury that is redressable by
the court.
In order to have Article III standing in federal court, a plaintiff must suffer
an injury in fact that is both causally connected to the conduct complained of and
redressable by a favorable decision of the court. Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992). These constitutional standing requirements are
jurisdictional in that they “involve[] the court’s competency to consider a given
type of case,’” and, therefore, “‘cannot be waived or otherwise conferred upon the
court by the parties.” Bochese v. Town of Ponce Inlet, 405 F.3d 964, 975 (11th Cir.
2005). Standing “is the threshold question in every federal case, determining the
power of the court to entertain the suit.” Warth v. Selden, 422 U.S. 490, 499
2
(1975). “‘In the absence of standing, a court is not free to opine in an advisory
capacity about the merits of a plaintiff’s claims,’” and “‘the court is powerless to
continue.’” CAMP Legal Defense Fund, Inc. v. City of Atlanta, 451 F.3d 1257,
1269 (11th Cir. 2006) (internal citations omitted).
The County in its Answer to the Complaint denied that Maverick had
standing to bring its claims. The Magistrate Judge concluded that Maverick had
standing.1 Although the County did not cross-appeal this part of the district
court’s judgment, we must satisfy ourselves that Maverick has standing before
proceeding to consider the merits of this appeal. Id. Unless Maverick has Article
III standing to bring its claims, the district court had no constitutional authority to
enter a judgment in the case. Id.
B. Maverick’s injury is not redressable by the court.
We have recently held that a plaintiff whose sign permit applications were
denied on the basis of one provision in a county’s sign ordinance, but which could
have been denied on the basis of some alternate, but unchallenged regulation, does
not have a redressable injury. KH Outdoor, L.L.C. v. Clay County, 482 F.3d 1299,
1301 (11th Cir. 2007). In that case, KH Outdoor sought to erect offsite billboards,
1
The district court referred the case to the Magistrate Judge for a Report and
Recommendation on the cross-motions for summary judgment.
3
prohibited by a provision of the county’s sign ordinance. We held that its injury
was not redressable because even if the court were to strike the challenged
provision, there were other unchallenged regulations that would still have
prohibited its signs. Id.2 In the absence of a redressable injury, KH Outdoor did
not have standing to contest the ordinance. Id.3
This approach has been endorsed by several of our sister circuits. In
Midwest Media Prop., LLC v. Symmes Tp., 503 F.3d 456, 461 (6th Cir. 2007), the
plaintiff sign company sought permits to erect offsite billboards, which the
township’s ordinance prohibited.4 The Sixth Circuit held that the plaintiff’s injury
was not redressable because “[e]ven if plaintiffs could show that the township’s
original [offsite] advertising ban . . . violated the First Amendment, each of
[plaintiff’s] nine sign applications sought to post signs that plainly violated the
township’s size and height regulations,” which plaintiffs chose not to challenge in
2
In KH Outdoor, the “other” regulations were found in state law that imposed certain
application requirements that had not been met by the plaintiff. 541 F.3d at 1303-04.
3
The Magistrate in this case concluded that Maverick had standing because “[Maverick’s]
injury likely would be redressed by a favorable decision (e.g., actual or nominal damages).” The
district court summarily adopted the Report and Recommendation. This was error. In KH
Outdoor, the plaintiffs requested damages. In concluding that the plaintiff did not have standing,
we necessarily concluded that damages – just as sign permits – are unavailable to the plaintiff
whose sign applications may be denied under an alternative, unchallenged provision of an
ordinance. See also Get Outdoors II, 506 F.3d 894 (nominal damages unavailable to plaintiff
whose applications deniable under alternate provision of ordinance)
4
Offsite signs are those that are not located at the site of the business advertised.
4
their complaint. Id. The court said that “even if . . . our court invalidated [the
offsite sign ban], that would not redress plaintiffs’ injury because the size and
height restrictions still would preclude the township from approving their sign
applications and thus still would preclude plaintiffs from erecting each of these
signs.” Id. at 461-62. Therefore, the court concluded, plaintiffs had no standing.
Similarly, in Advantage Media, L.L.C. v. City of Eden Prairie, 456 F.3d
793, 801 (8th Cir. 2006), the Eighth Circuit concluded that the plaintiff sign
company lacked standing to challenge a city ordinance banning billboards because
“a favorable decision for Advantage, even with respect to those sign code
provisions which were factors in the denial of its permit applications would not
allow it to build its proposed signs, for these would still violate other unchallenged
provisions of the sign code like the restrictions on size, height, location, and
setback.” Plaintiff’s injury was not redressable, the court concluded, “for even in
victory it would be ‘no closer’ to erecting its billboards or obtaining damages than
when litigation began.” Id. at 802 (internal citation omitted). Without a
redressable injury, the court held that the sign company lacked standing to
proceed. Id.
The Fourth Circuit reached the same result in Covenant Media of South
Carolina, LLC v. City of North Charleston, 493 F.3d 421 (4th Cir. 2007). In that
5
case the plaintiff sign company’s applications violated multiple sections of the
city’s sign ordinance, not all of which it challenged. The court said that
“[b]ecause Covenant’s application violated the spacing requirement, it could not
have been approved regardless of whether other substantive provisions of the Sign
Regulation are held to be unconstitutional.” Id. at 430. Therefore, the plaintiff’s
alleged injury was unredressable and it had no standing to proceed.
The Seventh Circuit has also endorsed this redressability analysis as applied
to sign company plaintiffs whose applications could have been denied under
alternate, unchallenged provisions of a sign ordinance, holding that plaintiffs have
no standing where “[plaintiff] suffers an injury [it cannot erect the proposed
billboard], but winning the case will not alter that situation”). Harp Adver. Ill.,
Inc., v. Village of Chicago Ridge, Ill., 9 F.3d 1290, 1292 (7th Cir. 1993). See also
Get Outdoors II, LLC v. City of San Diego, 506 F.3d 886, 893 (9th Cir. 2007)
(endorsing our approach in KH Outdoor, so long as standing is defeated as a result
of an unchallenged secondary restriction, such as one based on height or size).
Thus, the KH Outdoor redressability analysis is applicable to the case where
a county could deny a plaintiff’s sign permit applications under an alternative
provision of its ordinance that the plaintiff’s complaint does not challenge. This is
such a case. Just as in KH Outdoor, Hillsborough County’s ordinance contains
6
height and size limitations for permitted signs. These limitations would have
prohibited the erection of Maverick’s billboards independently of the ordinance’s
categorical billboard prohibitions, and the Magistrate specifically so found. [R &
R at n. 23.] In his Report and Recommendation, the Magistrate found that the
evidence submitted by Maverick revealed that it sought permits only for signs
measuring 14' x 48', “the size of which clearly exceeds the size limitations
contained in the excepted off-site directional signs provisions.” [R & R at n.23,
citing §§ 7.04.02(B)(6), (C)(6), (D)(2), (E)(2), and (F)(2)].5 Therefore, the County
could have denied Maverick’s applications under an alternative, unchallenged
provision of its sign ordinance.
Maverick did not specifically challenge the height and size restrictions in
the County’s ordinance because it did not apply for the type of sign permitted by
the County’s ordinance. Therefore, its applications were not denied under these
provisions. Since its applications were for offsite billboards, they were denied
under ordinance provisions prohibiting billboards and offsite signs.6
5
The ordinance defined billboards as any advertising sign measuring 72 square feet in
aggregate sign area or more. [R & R, n. 22]. Both the Amended Complaint and Maverick’s
property leases for its signs confirm that all of Maverick’s applications were for signs measuring
14 by 48 feet in size, and the Magistrate specifically so found in his R & R.
6
The Magistrate Judge found that the County denied Maverick’s applications on the
ground that they were for prohibited off-site signs or billboard signs.
7
Nor may Maverick invoke the overbreadth doctrine in an attempt to get at
these limitations. See CAMP, 451 F.3d at 1270. In CAMP, we rejected the
contention that a plaintiff who has suffered injury under one provision of an
ordinance has standing to challenge the entire ordinance. Id. at 1270. We
clarified that the overbreadth doctrine is an exception only to the prudential
standing requirement that a plaintiff must assert his own legal rights and interests,
and cannot rest his claim to relief on the legal rights or interests of third parties.
Id. at 1270-71 (citing Warth v. Selden, 422 U.S. 490, 499 (1975)). The doctrine
merely permits the plaintiff to whom a provision of a statute is constitutionally
applied to assert that the same provision might be unconstitutionally applied to
third parties not before the court. Broadrick v. Oklahoma, 413 U.S. 601, 613
(1973). Thus, a plaintiff who has established constitutional injury as to himself
under a provision of a statue may also attack that provision under the overbreadth
doctrine to vindicate the rights of others not before the court. Camp, 451 F.3d at
1273-74 (citing FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 233 (1990)).
The overbreadth doctrine does not, however, grant a plaintiff carte blanche
to challenge an entire ordinance merely because some part of the ordinance – to
which the plaintiff is not subject – might be unconstitutional. Id. at 1271. It does
not, because it may not, waive the Article III requirement that the plaintiff have
8
suffered a real injury in fact as to a challenged provision of an ordinance. Id.; see
also Granite State Outdoor Advertising, Inc., v. City of Clearwater, Fla., 351 F.3d
1112, 1116-17 (11th Cir. 2003) (overbreadth doctrine does not vitiate the
requirement for an injury in fact as to the challenged provision). Therefore, a
plaintiff may not attack any provision of an ordinance under which he has not
suffered a real injury in fact. Id. See also Get Outdoors II, 506 F.3d at 892
(plaintiff may not “leverage its injuries under certain, specific provisions to state
an injury under the sign ordinance generally); Prime Media, Inc. v. City of
Brentwood, 485 F.3d 343, 350 (6th Cir. 2007) (“Prime Media’s standing with
regard to the size and height requirements does not magically carry over to allow it
to litigate other independent provisions of the ordinance without a separate
showing of an actual injury under those provisions”); Covenant Media, 493 F.3d
at 421 (“That Covenant has standing to challenge the timeliness of the City’s
decision on the December 2004 application does not provide it a passport to
explore the constitutionality of every provision of the Sign Regulation”).
Therefore, Maverick may challenge only those provisions of the ordinance
under which it suffered an injury in fact. The Magistrate determined that
Maverick did not suffer injury under the permitted sign provisions of the
ordinance because Maverick did not apply for such signs. All of Maverick’s sign
9
applications were for prohibited billboards – signs that greatly exceed the height
and size limitations for permitted signs. The Magistrate specifically found,
without objection by Maverick, that it was “not subject to the exceptions to the
prohibitions on off-site signs found in [the old ordinance] because the evidence
submitted by Maverick reveals that it sought permits for signs measuring 14' by
48', the size of which clearly exceeds the size limitations contained in the excepted
off-site directional signs provisions.”
If there were any evidence in this record that Maverick sought to display
signs that otherwise complied with the permitted sign provision, it might have an
injury in fact as to the height and size restrictions in this provision. Since there is
no such evidence, Maverick suffered no injury in fact under the permitted sign
provision of the prior ordinance and it has no standing to challenge it under the
overbreadth doctrine or any other doctrine. See Prime Media, Inc. v. City of
Brentwood, 485 F.3d 343, 352 (6th Cir. 2007) (reaching same conclusion and
observing that “[i]f it had attempted to produce a billboard which complied with
the height and size requirements, and was threatened with rejection or regulation
under the other challenged ordinance provisions, there would arguably be a
cognizable injury in fact. . . . However, the record bears no evidence of such a
10
development”).7
II.
In sum, Maverick does not have standing to bring this action challenging
the billboard and offsite sign prohibitions in the County’s prior sign ordinance
because its injury in fact under these provisions is unredressable by the court. It
may not challenge the entire ordinance on its face because it has suffered no injury
in fact as to any other provisions. Therefore, the judgment of the district court is
due to be vacated, and the case will be remanded to the district court with
instructions to dismiss the case.
VACATED and REMANDED.
7
Nor does Maverick’s claim that the offsite sign prohibition is not content-neutral change
this analysis in any way. Maverick’s offsite sign applications, denied under the ordinance’s
prohibition on offsite signs, similarly could have been denied under the size and height
limitations, because all the applications were for signs that exceeded those limitations.
11