Associated Builders & Contractors Western Penn v. Community College of Allegheny ( 2023 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 22-2030
______________
ASSOCIATED BUILDERS & CONTRACTORS
WESTERN PENNSYLVANIA;
ARROW ELECTRIC INC.; HAMPTON MECHANICAL
INC.; LAWRENCE
PLUMBING, LLC; R.A. GLANCY & SONS INC.;
WESTMORELAND ELECTRIC
SERVICES LLC; GREGORY H. OLIVER, JR.; DANIEL
VINCENT GLANCY;
ROBERT L. CASTEEL; JASON PHILLIP BOYD; ROBERT
A. GLANCY, IV,
Appellants
v.
COMMUNITY COLLEGE OF ALLEGHENY COUNTY;
QUINTIN B. BULLOCK
in his official capacity as President of the Community College
of
Allegheny County; PITTSBURGH REGIONAL BUILDING
TRADES COUNCIL
______________
No. 22-2031
______________
ASSOCIATED BUILDERS & CONTRACTORS
WESTERN PENNSYLVANIA;
HAMPTON MECHANICAL INC.; LAWRENCE
PLUMBING LLC; R.A. GLANCY
& SONS INC. as individuals and on behalf of others similarly
situated; ROBERT L. CASTEEL; ANTHONY SCARPINE
as individuals
and on behalf of others similarly situated,
Appellants
v.
PLUM BOROUGH; PITTSBURGH REGIONAL
BUILDING TRADES COUNCIL
_____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Nos. 2-20-cv-00649 & 2-20-cv-01933)
District Judge: Honorable W. Scott Hardy
______________
Argued on June 14, 2023
Before: PORTER, FREEMAN and FISHER, Circuit Judges.
______________
(Filed: August 29, 2023)
Jonathan F. Mitchell ARGUED
111 Congress Avenue, Suite 400
2
Austin, TX 78701
Walter S. Zimolong, III
Zimolong
P.O. Box 552
Villanova, PA 19085
Counsel for Appellants
F. Timothy Grieco
Gerard Hornby
Eckert Seamans Cherin & Mellott
600 Grant Street
44th Floor, US Steel Tower
Pittsburgh, PA 15219
Counsel for Appellees Community College of Allegheny
County and Quintin B. Bullock
Lucas R.J. Aubrey
Jacob J. Demree
Jonathan D. Newman ARGUED
Sherman Dunn
900 7th Street NW
Suite 1000
Washington, DC 20001
Joshua M. Bloom
Joshua M. Bloom & Associates
2201 Liberty Avenue
Suite 204
Pittsburgh, PA 15222
Counsel for Appellee Pittsburgh Regional Building
Trades Council
3
Bruce E. Dice
Bruce E. Dice & Associates
787 Pine Valley Drive
Suite E
Pittsburgh, PA 15239
Counsel for Appellee Borough of Plum
______________
OPINION OF THE COURT
______________
FISHER, Circuit Judge.
Collective-bargaining tools help unions influence labor
practices and protect workers’ rights. One such tool, the project
labor agreement, is at the center of these consolidated cases. A
project labor agreement is a collective-bargaining agreement
between a project owner, contractors, and unions that sets the
terms and conditions of employment for a particular
construction project. The terms can include things like
recognizing a union as the workers’ exclusive bargaining
representative and paying the workers union wages—even if
they are not union members.
Associated Builders & Contractors, some of its
members, and several non-union employees are suing the
Community College of Allegheny County and Plum Borough,
among other defendants, for using project labor agreements.
Plaintiffs claim the project labor agreements violate the First
and Fourteenth Amendments, the National Labor Relations
Act, the Sherman Act, and Pennsylvania’s competitive-bidding
laws for government projects. The District Court dismissed
Plaintiffs’ federal claims on the merits and declined to exercise
supplemental jurisdiction over their state law claims. While we
4
agree the complaints do not survive dismissal, we base our
conclusion on Plaintiffs’ lack of standing.
The Community College of Allegheny County and
Plum Borough each entered into a project labor agreement
(PLA) with the Pittsburgh Regional Building and Construction
Trades Council. The terms of the two PLAs are essentially
identical. Each requires “all construction work” covered by the
agreement to be “contracted exclusively” to contractors who
agree to the PLA’s terms. App. 122, 162. Contractors may
award contracts or subcontracts on PLA-covered projects to
entities that do not have an agreement with the relevant union,
so long as the entity abides by the terms of the PLA. The PLA
“applies exclusively” to the project specified therein. App. 122,
162. The Community College PLA defines a project as each
“bid proposal,” App. 122, while the Borough PLA defines a
project as “the onsite construction of the new borough
building,” App. 162.
Contractors who work on these projects must
“recognize[] the Unions as the sole and exclusive bargaining
representative of all craft employees within their respective
jurisdictions working on the Project under the Agreement.”
App. 126; see also App. 170. Contractors must use local union
job referral systems (known as union hiring halls) to staff the
projects. 1 Even so, contractors retain the right to determine the
1
There are two exceptions to this requirement: (1) if the
local union does not have a job referral system, the contractor
may hire from any other source after giving the union forty-
eight hours to refer an employee; and (2) contractors may hire
a certain number of “‘core’ employees.” App. 128, 172.
5
competency of all employees and to reject union hall referrals.
Additionally, contractors must pay employees “the prevailing
[union] wage and benefit rates” as well as “pay all required
contributions” to the employee benefit funds that cover things
like pensions, health care, and vacation. 2 App. 132; see also
App. 181.
The PLAs contain various non-discrimination clauses.
One clause states that no employee is required to join a union
or pay agency fees or dues “as a condition of being employed,
or remaining employed, on the Project.” App. 127; see also
App. 172. Another requires the union hiring halls to operate in
a “non-discriminatory manner and in full compliance with
Federal, State, and Local laws.” App. 127; see also App. 170.
Yet another requires the PLA terms to be applied without
regard to race, religion, or union membership status.
A group of plaintiffs sued, in two separate cases,
challenging the PLAs under federal and state law. Because
each “plaintiff generally must assert his own legal rights and
interests, and cannot rest his claim to relief on the legal rights
or interests of third parties,” Valley Forge Christian Coll. v.
Ams. United for Separation of Church & State, Inc., 454 U.S.
464, 474 (1982) (citation omitted), knowing the particular
parties involved is essential to the analysis that follows. In the
Community College case, Plaintiffs are: Associated Builders
& Contractors of Western Pennsylvania (ABC), an
However, contractors are not required to contribute to
2
employee benefit funds on behalf of “core employees unless
any core employee voluntarily elects to join and become a
member of any local union signatory” to the PLA. App. 132,
182.
6
organization of contractors whose members are almost all non-
union; a group of ABC members who are non-union
contractors; several of these contractors’ non-union
employees; and two Allegheny County taxpayers. The
Defendants are the Community College of Allegheny County;
its President; and the Trades Council. In the Borough case,
which is brought as a class action, Plaintiffs are: ABC; a group
of ABC members who are non-union contractors; and two of
these contractors’ non-union employees, who are also Plum
Borough taxpayers. The Defendants are Plum Borough and the
Trades Council.
In both cases, Plaintiffs bring 42 U.S.C. § 1983 claims
based on alleged violations of the First and Fourteenth
Amendments and the National Labor Relations Act, 29 U.S.C.
§§ 157 & 158. In violation of the First Amendment, Plaintiffs
allege the PLAs force employees to join or associate with
unions and force contractors to recognize and financially
support unions. Under the NLRA, they allege employees are
prohibited from working on PLA-covered projects unless they
join a union or use the hiring halls, and contractors are
improperly forced to recognize unions as the representatives of
their non-union employees. Plaintiffs also assert Sherman Act
claims. Specifically, they allege the PLAs restrain competition
in two ways: by disqualifying contractors from projects unless
they hire through the hiring halls, recognize the relevant union
as their employees’ exclusive representative, and contribute to
the relevant union’s pension and health-care funds; and by
excluding employees from projects unless they join unions or
participate in the hiring halls. Finally, Plaintiffs allege the
PLAs violate Pennsylvania’s competitive-bidding laws by
discriminating against non-union contractors and contractors
whose employees are represented by a union that does not
belong to the Trades Council. Plaintiffs seek declaratory and
7
injunctive relief, as well as damages (in the Borough case) and
costs and attorneys’ fees.
In January 2021, the District Court consolidated the
Community College and Borough cases. Defendants moved to
dismiss for lack of jurisdiction, Fed. R. Civ. P. 12(b)(1), and
failure to state a claim, Fed. R. Civ. P. 12(b)(6). Plaintiffs
opposed the motion and submitted declarations from almost all
of the contractor plaintiffs. The declarations stated that the
contractors did not and “will not bid” on the Community
College’s and the Borough’s PLA-covered projects, but that
they are ready and able to bid on future projects should the
PLAs be removed. App. 196, 199, 202, 205. The declarations
also detailed prior solicitations for bids by the Community
College and the Borough related to PLA-covered projects. The
District Court granted in part Defendants’ 12(b)(1) motion and
granted their 12(b)(6) motion on all claims.
On standing, the Court assessed each group of
Plaintiffs’ eligibility to seek retrospective and prospective
relief in general rather than as to each claim. Beginning with
the contractors, the Court seems to have based its injury-in-fact
analysis on their lost opportunities to bid on PLA-covered
public projects. It held that the contractor plaintiffs in the
Community College case who submitted declarations
established standing for retrospective and prospective relief—
but one contractor who did not submit a declaration, Arrow
Electric, Inc., failed to allege sufficient facts to substantiate
standing. 3 As to the contractor plaintiffs in the Borough case,
the Court held all had standing to seek retrospective relief
3
Had Plaintiffs not submitted the contractors’
declarations along with their complaints, the District Court
reasoned, they would not have alleged sufficient facts to
substantiate standing in either case.
8
based on their declarations. However, none had standing to
seek prospective relief: the Borough PLA, which Plaintiffs
attached to their complaint, did not threaten future injury
because it only applied to onsite construction for “the new
borough building,” bids for which had already been solicited.
App. 162.
As to the employee plaintiffs, the Court based its injury-
in-fact analysis on their “inconvenience[]” of having to obtain
work through the union hiring halls, App. 34, as well as their
“decreased work opportunities,” App. 36. It held the
employees had standing coextensive with the contractor
plaintiffs (their employers) as to the latter injury because the
employees relied exclusively on the contractors’ declarations
to substantiate standing. 4
Finally, the Court held ABC’s standing was coextensive
with the contractor plaintiffs because an organization’s
standing depends on the standing of its members.
On the merits, the Court dismissed all claims. It rejected
Plaintiffs’ First Amendment claims, both facial and as-applied.
Facially, the PLAs did not compel union membership because
they expressly prohibited discrimination against non-union
members. And absent additional facts about how unions
discriminate, Plaintiffs’ as-applied challenge failed. The Court
dismissed Plaintiffs’ NLRA claims on the ground that states do
not commit unfair labor practices when they act as market
4
The District Court concluded that the employees could
not rely on an alleged “inconvenience” injury to substantiate
standing to seek past or future relief because they failed to
“submit[] additional facts” to show they had suffered or will
suffer that particular harm. App. 37 n.7. By contrast, the Court
reasoned that the employees’ harm by way of decreased job
opportunities was evidenced by the contractors’ declarations.
9
participants, so long as they do so to advance proprietary
interests. The Court dismissed Plaintiffs’ federal antitrust
claims for failure to allege sufficient facts, including the type
of claim, its elements, and the relevant market. And, finally,
the Court dismissed Plaintiffs’ state law claims because no
federal claims remained in the case. Plaintiffs appeal.
5
Plaintiffs’ appeal involves both jurisdictional and merits
issues. We have plenary review over the jurisdictional ones, all
of which relate to standing in some way. Weichsel v. JP
Morgan Chase Bank, N.A., 65 F.4th 105, 110 n.6 (3d Cir.
2023). We review de novo a district court’s grant of a motion
to dismiss. Diamond v. Pa. State Educ. Ass’n, 972 F.3d 262,
269 (3d Cir. 2020). And we review for an abuse of discretion a
district court’s decision to decline supplemental jurisdiction.
United States v. Omnicare, Inc., 903 F.3d 78, 94 (3d Cir. 2018).
“This case begins and ends with standing.” Carney v.
Adams, 141 S. Ct. 493, 498 (2020). That is because “[u]nder
Article III, a case or controversy can exist only if a plaintiff has
standing to sue.” United States v. Texas, 143 S. Ct. 1964, 1969
(2023); see U.S. Const. art. III, § 2 (“judicial Power shall
extend” to “Cases” and “Controversies”). This is “a bedrock
constitutional requirement,” Texas, 143 S. Ct. at 1969, that
“preserves the ‘tripartite structure’ of our Federal
Government,” prevents the judiciary from intruding on other
5
The District Court had jurisdiction over both cases
under 28 U.S.C. §§ 1331, 1343, and 1367. We have jurisdiction
under 28 U.S.C. § 1291.
10
branches’ domains, and ensures plaintiffs are justified in
invoking federal courts’ remedial power, see Town of Chester
v. Laroe Ests., Inc., 581 U.S. 433, 438 (2017) (quoting Spokeo,
Inc. v. Robins, 578 U.S. 330, 337 (2016)).
To establish Article III standing, a plaintiff bears the
burden of showing three “irreducible” elements. In re Schering
Plough Corp. Intron/Temodar Consumer Class Action, 678
F.3d 235, 244 (3d Cir. 2012) (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992)). He “must have (1)
suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision.” Spokeo, 578 U.S.
at 338. Standing “is not dispensed in gross.” Davis v. Fed.
Election Comm’n, 554 U.S. 724, 734 (2008) (quoting Lewis v.
Casey, 518 U.S. 343, 358 n.6 (1996)). Rather, a “‘plaintiff must
demonstrate standing for each claim he seeks to press’ and ‘for
each form of relief’ that is sought.” Id. (quoting
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)).
The District Court analyzed each group of Plaintiffs’
standing to seek prospective and retrospective relief in the case
in toto, rather than analyzing standing for each claim. 6 In doing
so, the Court seems to have assumed that an injury based on
“decreased work opportunities” fully satisfied Article III’s
standing requirements. App. 36. On appeal, Defendants contest
Plaintiffs’ standing to bring a First Amendment claim by
arguing that lost job opportunities are not a concrete and
6
We agree with the District Court that ABC’s standing,
as an organization, rises or falls with the standing of its
members, the contractor plaintiffs. See Hunt v. Wash. State
Apple Advert. Comm’n, 432 U.S. 333, 342–43 (1977). Thus,
we focus our analysis on the contractors’ and employees’
standing.
11
particularized injury to a legally protected First Amendment
interest. Plaintiffs disagree, arguing that their alleged factual
injury need not be tied to the legally protected interest at stake
so long as they allege some factual injury.
Although Defendants’ standing challenge is limited to
one claim, standing is an issue of “subject matter jurisdiction
[that] cannot be waived” or “forfeited.” See Burton v. Schamp,
25 F.4th 198, 207 (3d Cir. 2022). We “have an independent
obligation to determine whether subject-matter jurisdiction
exists, even in the absence of a challenge from any party.”
Hartig Drug Co. Inc. v. Senju Pharm. Co., 836 F.3d 261, 267
(3d Cir. 2016) (quoting Arbaugh v. Y & H Corp., 546 U.S. 500,
514 (2006)). And upon our review of the matter, we conclude
that Plaintiffs fail to allege Article III standing, namely an
injury in fact, on all claims.
An injury in fact is “an invasion of a legally protected
interest which is (a) concrete and particularized and (b) actual
or imminent, not conjectural or hypothetical.” In re Schering
Plough, 678 F.3d at 244 (citation omitted). To be concrete, an
injury must be “‘real,’ and not ‘abstract.’” Spokeo, 578 U.S. at
340 (citation omitted). In other words, the asserted harm must
have a close relationship to “a harm traditionally recognized as
providing a basis for a lawsuit in American courts.”
TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2200 (2021).
These harms include physical and monetary harms, as well as
“[v]arious intangible harms” such as reputational harms,
disclosure of private information, intrusion upon seclusion,
and, as relevant here, “harms specified by the Constitution
itself.” Id. at 2204. An injury is particular when it is personal
to the plaintiff. See id. at 2203. Injury to some third party or
society at large will not do. See United States v. Richardson,
418 U.S. 166, 171–72 (1974).
12
We take up Plaintiffs’ argument first, which is contrary
to the law on Article III standing. Plaintiffs contend they need
only allege “some factual injury” rather than a First
Amendment injury to bring a First Amendment claim. Reply
3. They are wrong. Standing depends on an injury to a legally
protected interest. Lujan, 504 U.S. at 560–61. While Plaintiffs
are right that the size of the injury is irrelevant, whatever mere
“trifle” is alleged, Reply 1 (quoting United States v. Students
Challenging Regul. Agency Procs. (SCRAP), 412 U.S. 669,
689 n.14 (1973)), must still be legally cognizable. For that
reason, standing “often turns on the nature and source of the
claim asserted,” whether it be statutory, constitutional, or
otherwise. Warth v. Seldin, 422 U.S. 490, 500 (1975); see also
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211 (1995)
(“Adarand’s claim that the Government’s use of subcontractor
compensation clauses denies it equal protection of the laws of
course alleges an invasion of a legally protected
interest . . . .”); cf. Blum v. Yaretsky, 457 U.S. 991, 993, 1000–
02 (1982) (holding plaintiffs claiming denial of Medicaid
benefits had standing to challenge deprivation of property right
without due process of law).
Plaintiffs’ citations to various standing cases are
unhelpful because they deal with the more difficult issue of
when a violation of the Administrative Procedure Act inflicts
a sufficiently concrete injury. See SCRAP, 412 U.S. at 685 &
n.12; Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397
U.S. 150, 153–54 (1970). In APA (and other statutory
violation) cases, certain harms can be alleged in combination
with a mere procedural harm to demonstrate a concrete injury.
See Camp, 397 U.S. at 153–54 (legal interest protected by the
APA reflects “‘aesthetic, conservational, and recreational’ as
well as economic values” (citation omitted)); see also Summers
v. Earth Island Inst., 555 U.S. 488, 496 (2009) (mere
13
procedural deprivation “is insufficient to create Article III
standing”). In contrast to mere procedural harms, when a
plaintiff asserts a constitutional claim, he is alleging a
constitutional harm. Thus, we say a plaintiff has standing to
bring a First Amendment claim when he suffers injury to his
legally protected First Amendment interest—e.g., when the
state forces him to speak, see W. Va. State Bd. of Educ. v.
Barnette, 319 U.S. 624, 642 (1943), or associate, see Boy
Scouts of Am. v. Dale, 530 U.S. 640, 661 (2000).
Defendants are equally off base in arguing that
Plaintiffs fail Article III’s concrete and particularized
requirements. First, because Plaintiffs allege an injury to
themselves, not someone else, there is no particularity issue.
Second, while Defendants are correct that job losses, in and of
themselves, are not an injury to a legally protected First
Amendment interest, their argument is largely beside the point.
True, Plaintiffs do not point to a common law action, statute,
or constitutional right guaranteeing them a job. But Defendants
ignore that, in bringing their First Amendment-based claim,
Plaintiffs plead an injury to their right to associate. Though
Plaintiffs’ association injury may be “intangible,” it is no less
concrete when it is “specified by the Constitution itself.” See
TransUnion LLC, 141 S. Ct. at 2204. Thus, Plaintiffs, no doubt,
have alleged a concrete injury by alleging a harm to their
legally protected First Amendment interest to freely associate.
Plaintiffs allege the contractors are forced to “recognize a
union” as the exclusive representative of their employees, “hire
employees from a union’s job-referral system[],” and
financially “contribute to” unions in order to work on PLA-
covered public projects, despite the contractors’ commitment
to a “free enterprise system” and “Merit Shop philosophy” that
the lowest responsible bidder should be awarded a contract.
App. 109–10; see also App. 144–45. Meanwhile, the
14
employees are forced to, at worst, join unions or, at best,
associate with unions via hiring halls to work on PLA-covered
public projects, despite their desire to not associate with or join
union ranks.
Plaintiffs’ other claims, which allege injury to statutory
rights under the NLRA, Sherman Act, and state competitive-
bidding laws, are also sufficiently concrete. “Congress’s
creation of a statutory prohibition or obligation and a cause of
action does not relieve courts of their responsibility to
independently decide whether a plaintiff has suffered a
concrete harm under Article III . . . .” TransUnion LLC, 141 S.
Ct. at 2205. But statutory violations that cause some “physical,
monetary, or cognizable intangible harm” will satisfy courts
that the plaintiff has been “concretely harmed by a defendant’s
statutory violation.” Id. at 2205–06. The contractors and
employees assert more than a “bare procedural violation.”
Spokeo, 578 U.S. at 341. They allege a “tangible, economic
harm”: decreased work opportunities. See Cottrell v. Alcon
Lab’ys, 874 F.3d 154, 167 (3d Cir. 2017). That is enough to
satisfy Article III’s concreteness requirement when it comes to
Plaintiffs’ claims premised on statutory violations.
Concreteness and particularity, however, are but two of
the requirements under Article III. Plaintiffs’ concrete injuries
must also be actual or imminent. See Lujan, 504 U.S. at 564
n.2 (requiring injury to be certainly impending, “not too
speculative”); see also Moose Lodge No. 107 v. Irvis, 407 U.S.
163, 167 (1972) (denying standing to plaintiff challenging
discriminatory membership policies because “he never sought
to become a member”). “To be ‘imminent,’ either a threat of
injury must be ‘certainly impending,’ or there must at least be
‘a substantial risk that the harm will occur.’” Nat’l Shooting
Sports Found. v. Att’y Gen. of N.J., --- F.4th ----, 2023 WL
5286171, at *2 (3d Cir. 2023) (quoting Susan B. Anthony List
15
v. Driehaus, 573 U.S. 149, 158 (2014)). But when the
contractors declare they never have and never will bid on PLA-
covered projects, they plead themselves out of court by
admitting they never experienced and never will experience a
compelled association or economic harm. The employees fare
no better. To the extent the contractors’ declarations are a
proxy for determining the actuality or imminence of harms to
their employees, the contractors clearly tell us they have not
and will not bid on PLA-covered projects. Thus, as far as we
can tell, neither will the employees be subjected to the terms of
the PLAs by way of being employed by bid-winning
contractors. Even more, as the District Court rightly noted, the
employees plead no facts, beyond what can be gleaned from
the contractors’ declarations, that they desire to, actually did,
or intend to work on PLA-covered public projects.
The mere fact that the contractors claim they are “able
and ready” to bid or work on PLA-covered public projects does
not cure their failure to bid in the past and admitted refusal to
bid in the future. App. 196, 199, 202, 205. Rather an actual bid,
when it is not futile, would have sustained an actual injury,
while an intent to bid is the proxy we may use for assuming an
injury is imminent. See, e.g., Adarand Constructors, 515 U.S.
at 211 (concluding contractor’s injury was “actual” related to
contract it bid on and lost, and “imminent” related to future
contracts because contractor “made an adequate showing that
sometime in the relatively near future it will bid on another
Government contract that offers financial incentives to a prime
contractor for hiring disadvantaged subcontractors”); see also
ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 302 (3d Cir.
2012) (holding plaintiff who “expressed no concrete desire” to
“reenter the market” lacked standing to seek prospective relief
on antitrust claim); Ellison v. Am. Bd. of Orthopaedic Surgery,
11 F.4th 200, 207 (3d Cir. 2021) (“a statement of intent to take
16
future action must reflect a concrete intent to do so
imminently”). According to the allegations in the complaints
and the declarations accompanying them, we have neither. 7
7
Nor is this an instance in which Plaintiffs seek a
declaratory judgment (or other prospective relief) in lieu of
pursuing “arguably illegal activity.” MedImmune, Inc. v.
Genentech, Inc., 549 U.S. 118, 129 (2007) (quoting Steffel v.
Thompson, 415 U.S. 452, 480 (1974) (Rehnquist, J.,
concurring)). It is well established that “[w]e do not force
people seeking to exercise their constitutional rights to wait
until they are” sanctioned for doing so. Nat’l Shooting Sports
Found., --- F.4th ----, 2023 WL 5286171, at *2. Thus,
sometimes a litigant is able to establish Article III standing to
challenge a law or regulation—even before it is actually
enforced against him—when “the threat of enforcement is
imminent.” Id. But unlike litigants in the past who have
successfully maintained standing in pre-enforcement actions,
here, Plaintiffs do not allege how their conduct or lack thereof
will trigger some legal penalty, civil or criminal, or a threat of
administrative action. See, e.g., 303 Creative LLC v. Elenis,
143 S. Ct. 2298, 2308–10, 2312 (2023) (plaintiff’s alleged
constitutionally protected behavior would trigger “a variety of
penalties,” such as fines, cease-and-desist orders, mandatory
educational programs, and ongoing compliance reporting
measures); Fed. Election Comm’n v. Ted Cruz for Senate, 142
S. Ct. 1638, 1648–50 (2022) (plaintiff’s alleged
constitutionally protected behavior would trigger
administrative enforcement of a loan-repayment limitation);
Associated Builders & Contractors Inc. N.J. Chapter v. City of
Jersey City, 836 F.3d 412, 414–16 & n.2 (3d Cir. 2016)
(involving a challenge to enforcement of an ordinance that
compelled private developers bidding on certain projects to
17
And without an actual or imminent injury, evidenced by a past
bid or an intent to make a future bid, we cannot distinguish
Plaintiffs “from a person with a mere interest” in stopping the
Community College’s and the Borough’s use of PLAs on
public projects. See SCRAP, 412 U.S. at 689 n.14. Therefore,
we conclude Plaintiffs lack Article III standing to maintain
their claims in federal court. 8
Though we agree with the District Court that Plaintiffs’
complaints should be dismissed, we reach that conclusion
based on jurisdictional rather than substantive defects in
Plaintiffs’ allegations. The District Court dismissed Plaintiffs’
federal claims with prejudice after reviewing each of them
under Federal Rule of Civil Procedure 12(b)(6) and upon
Plaintiffs’ failure to file amended complaints. 9 However, “a
enter into PLAs where violation of PLA risked loss of tax
abatement privileges and increased real estate tax
assessments); Bldg. & Constr. Trades Council of Metro. Dist.
v. Associated Builders & Contractors of Mass./R.I., Inc., 507
U.S. 218, 222–23 & n.1 (1993) (involving a challenge to a
preferred bid specification promulgated by a government
agency that required “successful bidder[s]” to abide by
collective-bargaining agreement (citation omitted)).
8
Because Plaintiffs lack standing for failure to allege an
actual or imminent injury, we do not address the merits of their
claims. And it follows that if all Plaintiffs lack an Article III
injury in fact, we need not opine on Arrow Electric’s standing
in particular or the District Court’s decision to not apply the
one-plaintiff rule.
9
The District Court dismissed Plaintiffs’ state law
claims without prejudice to their ability to bring those claims
18
dismissal for lack of subject matter jurisdiction is not an
adjudication on the merits and thus should be ordered ‘without
prejudice.’” Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172,
182 (3d Cir. 1999). Because we conclude Plaintiffs lack
standing rather than fail to state a claim, we are unable to affirm
the District Court’s dismissal with prejudice of Plaintiffs’
federal claims. Instead, we will vacate the District Court’s
dismissal with prejudice and remand with instructions to
dismiss the federal claims without prejudice pursuant to
Federal Rule of Civil Procedure 12(b)(1). See Ellison, 11 F.4th
at 210.
“Article III standing is ‘not merely a troublesome hurdle
to be overcome if possible so as to reach the merits of a lawsuit
which a party desires to have adjudicated; it is a part of the
basic charter promulgated by the Framers of the Constitution
at Philadelphia in 1787.’” Texas, 143 S. Ct. at 1969 (quoting
Valley Forge Christian Coll., 454 U.S. at 476). Bound by the
limits of our constitutionally endowed power, we conclude
dismissal without prejudice is appropriate because Plaintiffs
lack standing. Thus, we will vacate and remand with
instructions for the District Court to dismiss the federal claims
without prejudice, and we will affirm the dismissal of the state
law claims.
in state court. Because we agree that the federal claims fail, the
District Court did not abuse its discretion in dismissing the
state law claims without prejudice. See 28 U.S.C. § 1367(c)(3)
(permitting a district court to “decline to exercise supplemental
jurisdiction over a claim” if it “dismissed all claims over which
it has original jurisdiction”).
19