[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
24
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.
25
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
Focus on the Family v. Pinellas Suncoast Transit Authority
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2003-09-09
Citations: 344 F.3d 1263
Copy Citations