April 25, 2017
Appeal from the United States District Court for the Middle
District of Pennsylvania District Court No. 3-14-cv-02223
District Judge: The Honorable A. Richard Caputo
J. Bolock, Jr. [ARGUED] J. David Breemer AppellCounsel for
AppellCounsel for AppellCounsel for Appellant
J. Kozlowski William J. McPartland Thomas A. Specht [ARGUED]
Marshall Dennehey Warner Coleman & Goggin Counsel for
Before: SMITH, Chief Judge, McKEE, and RENDELL, Circuit
December 20, 2012, the Township of Scott in Lackawanna
County, Pennsylvania enacted an ordinance regulating
cemeteries. The ordinance authorizes officials to enter upon
any property within the Township to determine the existence
and location of any cemetery. The ordinance also compels
property owners to hold their private cemeteries open to the
public during daylight hours. The plaintiff, Rose Mary Knick,
challenges the ordinance on two grounds. First, Knick argues
that the ordinance authorizes unrestrained searches of
private property in violation of the Fourth Amendment.
Second, Knick argues that the ordinance takes private
property without just compensation in violation of the Fifth
Township's ordinance is extraordinary and
constitutionally suspect. However, important justiciability
considerations preclude us from reaching the merits. Because
Knick concedes that her Fourth Amendment rights were not
violated and fails to demonstrate that they imminently will
be, Knick lacks standing to advance her Fourth Amendment
challenge. And as the District Court correctly held,
Knick's Fifth Amendment claims are not ripe until she has
sought and been denied just compensation using
Pennsylvania's inverse-condemnation procedures, as
required by the Supreme Court's decision in
Williamson County Regional Planning Commission v.
Hamilton Bank of Johnson City, 473 U.S. 172 (1985). We
will therefore affirm.
December 20, 2012, the Township of Scott enacted Ordinance
No. 12-12-20-001, titled "Ordinance of the Township of
Scott Township [sic], Lackawanna County, Pennsylvania,
Relating to the Operation and Maintenance of Cemeteries and
Burial Places" (hereinafter, the "Ordinance").
App. 82. The Ordinance applies to "[a]ll cemeteries,
whether private or public, and whether existing or
established prior to the date of this Ordinance or hereafter
created." Id. It requires cemetery owners to
"properly maintain and upkeep any cemetery." App.
to this case are two provisions of the Ordinance. First, it
requires that "[a]ll cemeteries within the Township
shall be kept open and accessible to the general public
during daylight hours. No owner . . . shall unreasonably
restrict access to the general public nor shall any fee for
access be charged." Id. We will refer to this
as the "public-access provision."
the Ordinance permits the Township's "Code
Enforcement Officer and/or his/her agents and representatives
[to] enter upon any property within the Township for the
purposes of determining the existence of and location of any
cemetery, in order to ensure compliance with the terms and
provisions of this Ordinance." Id. We will
refer to this as the "inspection provision."
who violates the Ordinance is subject to a fine of between
$300 and $600, and "[e]ach day that the violation exists
shall constitute a separate offense." Id.
April 10, 2013, the Township Code Enforcement Officer, Carl
S. Ferraro, entered Knick's property without an
administrative warrant. Ferraro identified certain stones on
Knick's property as grave markers and issued a Notice of
Violation dated April 11, 2013. Knick disputes that a
cemetery exists on her property.
7, 2013, Knick brought suit against the Township in the
Lackawanna County Court of Common Pleas seeking declaratory
and injunctive relief. Knick filed an Emergency Motion for
Injunctive Relief on or about that same date. The parties
stipulated that the Township would withdraw its Notice of
Violation and further stipulated to an order staying any
enforcement actions against Knick. A hearing was held on
October 8, 2014. Then, on October 21, the Court ruled that it
"will render no decision on the matter." App. 261.
Specifically, the Court ruled "that it is not the proper
venue for this matter, since the case is not in the proper
posture for a decision to be rendered on the Plaintiff's
requested forms of relief." Id. Then, on October
31, the Township issued another Notice of Violation. Knick
filed a Petition for Contempt of Court in the Lackawanna
County Court of Common Pleas, which the Court denied on
January 30, 2015. At no point did Knick institute an
inverse-condemnation proceeding against the Township.
See 26 Pa. Const. Stat. Ann. § 502(c).
filed this action on November 20, 2014 in the United States
District Court for the Middle District of Pennsylvania. In
her original Complaint, Knick asserted four Counts under 42
U.S.C. § 1983: (I) Fourth Amendment claims against the
Township for maintaining a warrantless inspection regime (the
facial challenge) and entering Knick's property without a
warrant (the as-applied challenge); (II) a Fourth Amendment
claim against the Township for failure to train its officials
to obtain administrative warrants; (III) Fourth and
Fourteenth Amendment claims against Ferraro in his official
capacity for entering Knick's property without a warrant;
and (IV) claims seeking invalidation of the Ordinance on
Fourth, Fifth, and Fourteenth Amendment grounds, including,
inter alia, vagueness, improper exercise of the
Township's police power, and taking private property
without just compensation. After the Township filed its
motion to dismiss, Knick filed an Amended Complaint, which
added Count V for declaratory and injunctive relief. By Order
dated October 28, 2015, the District Court dismissed Counts
I-III with prejudice and dismissed Counts IV and V without
filed a Second Amended Complaint on November 16, 2015. The
Second Amended Complaint asserts three Counts: (I) the Fourth
Amendment claims pled in Count I of the original complaint;
(II) a claim that the Ordinance takes Knick's private
property without just compensation, in violation of the
Fourth, Fifth, and Fourteenth Amendments; and (III) claims
for declaratory and injunctive relief because, inter
alia, the Ordinance unconstitutionally takes Knick's
property and authorizes unconstitutional searches. By Order
dated September 7, 2016, the District Court dismissed Count I
with prejudice for the reasons provided in its earlier
decision and dismissed Counts II and III without prejudice
pending exhaustion of state-law remedies.
appeal timely followed. On appeal, Knick argues that the
District Court erred by dismissing her Fourth Amendment
facial challenge and by requiring her to exhaust state-law
remedies for her takings claims.
District Court had jurisdiction pursuant to 28 U.S.C. §
1331. We have jurisdiction to review "final decisions of
the district courts, " 28 U.S.C. § 1291, and we
must assure ourselves of our jurisdiction sua sponte,
see, e.g., Kreider Dairy Farms, Inc. v.
Glickman, 190 F.3d 113, 118 (3d Cir. 1999). Although the
District Court dismissed Knick's Second Amended Complaint
without prejudice as to certain claims, we conclude that
Knick nonetheless appealed from a final decision.
final, appealable decision is one "by which a district
court disassociates itself from a case." Gelboim v.
Bank of Am. Corp., 135 S.Ct. 897, 902 (2015) (quoting
Swint v. Chambers Cty. Comm'n, 514 U.S. 35, 42
(1995)). "While decisions of the Court have accorded
§ 1291 a practical rather than a technical construction,
the statute's core application is to rulings that
terminate an action." Id. (citations and
internal quotation marks omitted). For that reason,
dismissals without prejudice are ordinarily not final; leave
to amend contemplates "further proceedings in the
district court as part of the same action." Doe v.
Hesketh, 828 F.3d 159, 165 (3d Cir. 2016) (quoting
Aluminum Co. of Am. v. Beazer E., Inc., 124 F.3d
551, 560 (3d Cir. 1997)).
"[e]ven dismissals without prejudice have been held to
be final and appealable if they end [ ][the] suit so far as
the District Court was concerned." Id.
(alterations in original) (quoting GFL Advantage Fund,
Ltd. v. Colkitt, 272 F.3d 189, 198 n.3 (3d Cir. 2001));
see also United States v. Wallace & Tiernan Co.,
336 U.S. 793, 794 n.1 (1949). For example, we will review a
dismissal without prejudice if a plaintiff stands on the
complaint rather than exercising leave to amend,
Palakovic v. Wetzel, 854 F.3d 209, 219 (3d Cir.
2017), if a plaintiff argues that administrative exhaustion
would be futile, Ghana v. Holland, 226 F.3d 175,
180-81 (3d Cir. 2000), or if a plaintiff's claims are
"effectively barred" from being subsequently
reasserted due to the running of a statute of limitations or
some similar obstacle, LNC Invs., LLC v. Republic
Nicar., 396 F.3d 342, 346 (3d Cir. 2005).
the District Court dismissed Knick's takings claim
without prejudice and directed her to exhaust state remedies.
The District Court did not retain jurisdiction and closed the
case. Its order further specified that, following the
conclusion of state proceedings, any remaining takings claims
must be "re-fil[ed] . . . in federal court." App.
57. As such, "there cannot be-and, by court order, there
will not be-any further proceedings in the district court as
part of the same action." Beazer E., 124 F.3d
at 560. "[T]he district court has divested itself of
[the] case entirely, regardless of the fact that claims in
the case may continue to go forward in state court."
Erie Cty. Retirees Ass'n v. Cty. of Erie, 220
F.3d 193, 202 (3d Cir. 2000). The decision in this case is
therefore final "even if a similar case may be filed in
the future because the dismissal was without prejudice."
Schering-Plough Healthcare Prods., Inc. v. Schwarz
Pharma, Inc., 586 F.3d 500, 506 (7th Cir. 2009); see
also Limnia, Inc. v. U.S. Dep't of Energy, 857 F.3d
379, 385-86 (D.C. Cir. 2017); Hitchcock v. Cumberland
Univ. 403(b) DC Plan, 851 F.3d 552, 557-58 (6th Cir.
2017); Eastman Kodak Co. v. STWB, Inc., 452 F.3d
215, 219 (2d Cir. 2006) ("[A] dismissal without
prejudice, absent some retention of jurisdiction, is a final
decision . . . ."); cf. Blair v. Scott Specialty
Gases, 283 F.3d 595, 602 (3d Cir. 2002) (dismissal
without prejudice in favor of arbitration is appealable where
the District Court did not retain jurisdiction, even though
further court proceedings may ensue following arbitration).
we are satisfied that the District Court's decision is a
"final" one, and we have appellate jurisdiction
under § 1291. We proceed to Knick's claims.
begin with Knick's facial Fourth Amendment challenge. We
conclude that she lacks Article III standing because she has
failed to demonstrate an injury-in-fact and redressability.
Second Amended Complaint asserts both facial and as-applied
challenges to the Ordinance under the Fourth Amendment. As
part of her as-applied challenge, Knick claimed to be injured
by an unlawful search of her property. But the District Court
ruled that the search in question was lawful, and Knick does
not appeal that ruling. Although not initially raised by the
parties,  the question before us is whether Knick
may persist in her facial Fourth Amendment challenge even
though her own rights were not violated. Following
supplemental briefing and oral argument by the parties, we
conclude that Knick has failed to carry her burden to
demonstrate Article III standing to challenge the Ordinance
on Fourth Amendment grounds.
irreducible constitutional minimum of standing contains three
elements": injury in fact, causation, and
redressability. Lujan v. Defs. of Wildlife, 504 U.S.
555, 560- 61 (1992). As "[t]he party invoking federal
jurisdiction, " Knick "bears the burden of
establishing these elements." Id. at 561.
"Plaintiffs must have standing at all stages of the
litigation, " and certain findings by a district court
may require a subsequent reevaluation of standing. Pub.
Interest Research Grp. of N.J., Inc. v. Magnesium Elektron,
Inc., 123 F.3d 111, 117 (3d Cir. 1997).
first element, injury in fact, "is often
determinative." Toll Bros. v. Twp. of
Readington, 555 F.3d 131, 138 (3d Cir. 2009). The
plaintiff must demonstrate "an invasion of a legally
protected interest which is (a) concrete and particularized,
and (b) actual or imminent, not conjectural or
hypothetical." Lujan, 504 U.S. at 560
(citations and internal quotation marks omitted). To be
concrete, an injury need not be "tangible, " but
"it must actually exist." Spokeo, Inc. v.
Robins, 136 S.Ct. 1540, 1548-49 (2016). "For an
injury to be 'particularized, ' it 'must affect
the plaintiff in a personal and individual way.'"
Id. at 1548 (quoting Lujan, 504 U.S. at 560
n.1). Generalized grievances will not suffice. See
Schuchardt v. President of the U.S., 839 F.3d 336,
344-45 (3d Cir. 2016) (distinguishing between generalized and
widely shared grievances). Furthermore, "[a]lthough
imminence is concededly a somewhat elastic concept, it cannot
be stretched beyond its purpose, which is to ensure that the
alleged injury is not too speculative for Article III
purposes-that the injury is certainly
impending." Clapper v. Amnesty Int'l USA,
133 S.Ct. 1138, 1147 (2013) (quoting Lujan, 504 U.S.
at 564 n.2). If the injury is sufficient under those
standards, it must also be "fairly traceable to the
challenged action and redressable by a favorable
ruling" in accordance with the remaining two elements of
standing. Id. (quoting Monsanto Co. v. Geertson
Seed Farms, 561 U.S. 139, 149 (2010)).
case, the District Court ruled that the search of Knick's
property complied with the Fourth Amendment because Ferraro
searched an open field. "[A]n open field, unlike the
curtilage of a home, is not one of those protected areas
enumerated in the Fourth Amendment." United States
v. Jones, 565 U.S. 400, 411 (2012) (citation omitted)
(citing Oliver v. United States, 466 U.S. 170,
176-77 (1984)). Because Knick does not challenge that ruling
on appeal, she has accepted the District Court's
conclusion that her Fourth Amendment rights were not
violated. She has likewise accepted that her property was not
even "searched" in the constitutional sense.
Id. at 411 n.8. Even if Township officials were
likely to return to the same part of Knick's property for
further inspections, those ...