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Knick v. Township of Scott

United States Court of Appeals, Third Circuit

July 6, 2017

TOWNSHIP OF SCOTT; CARL S. FERRARO, Individually and in his Official Capacity as Scott Township Code Enforcement Officer

          Argued April 25, 2017

         On 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

          Frank J. Bolock, Jr. [ARGUED] J. David Breemer AppellCounsel for AppellCounsel for AppellCounsel for Appellant

          Mark J. Kozlowski William J. McPartland Thomas A. Specht [ARGUED] Marshall Dennehey Warner Coleman & Goggin Counsel for Appellees

          Before: SMITH, Chief Judge, McKEE, and RENDELL, Circuit Judges.


          SMITH, Chief Judge.

         On 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 Amendment.

         The 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.


         On 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. 83.

         Critical 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."

         Second, 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."

         Anyone 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.

         On 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.

         On May 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.[1] 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).

         Knick 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 prejudice.

         Knick 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.

         This 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.


         The 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.

         A 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)).

         But "[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).

         Here, 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).

         Thus, 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.


         We 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.


         The 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, [2] 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.

         "[T]he 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).

         The 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)).

         In this 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 ...

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