                                                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ____________

                                     No. 09-3599
                                    ____________

                       MICHAEL TAIT; JOSHUA SILVER;
                             ANN BOULAIS,
                                      Appellants

                                         v.

                           CITY OF PHILADELPHIA
                                ____________

            APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                             (D.C. No. 08-cv-03083)
                    District Judge: Honorable Jan E. Dubois
                                 ____________

                            Argued: January 11, 2011
                                 ____________

             Before: SCIRICA, BARRY and VANASKIE, Circuit Judges

                        (Opinion Filed: February 7, 2011 )
                                 ____________

Robert J. McNamara, Esq. (Argued)
William H. Mellor, III, Esq.
Institute for Justice
901 North Glebe Road
Suite 900
Arlington, VA 22203
        -AND-
Michael L. Berry, Esq.
Gayle C. Sproul, Esq.
Levine, Sullivan, Koch & Schulz
2112 Walnut Street
Third Floor
Philadelphia, PA 19103

Counsel for Appellants


Elise M. Bruhl, Esq. (Argued)
City of Philadelphia
Law Department
1515 Arch Street
One Parkway
Philadelphia, PA 19102
       -AND-
Nicole S. Morris, Esq.
Office of City Solicitor
1515 Arch Street
One Parkway
Philadelphia, PA 19102

Counsel for Appellee

                                      ____________

                                        OPINION
                                      ____________

BARRY, Circuit Judge

       Appellants are tour guides in Philadelphia, Pennsylvania, who allege that an

ordinance of the City of Philadelphia (“City”) unconstitutionally infringes on their

freedom of speech because it requires them to obtain a tour guide certificate from the City

before giving certain tours. To obtain a certificate, they must pass a written test and meet

other requirements that the ordinance establishes. Due to the City’s budget crisis,

however, the City has not yet begun to develop the written test or taken any other action

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toward creating the tour guide certificate program, and it has no concrete plans to do so in

the foreseeable future. In a thorough and well-reasoned opinion, the District Court found

that the case was not ripe and dismissed the complaint. We agree, and will affirm.

I.     BACKGROUND

       As we write only for the parties, a brief summary of the facts will suffice. On April

16, 2008, the Mayor of Philadelphia signed a bill enacting an ordinance (“Ordinance”)

that provided that “[n]o person shall act as a tour guide on any public right-of-way within

the Center City Tourist Area unless such person possesses a tour guide certificate issued

in accordance with this Section.” (R. at 371.) There is no dispute that appellants are “tour

guide[s]” who give tours covered by the Ordinance.

       The Ordinance identifies several requirements which must be satisfied before one

can obtain a tour guide certificate, including passing a written examination, to be

developed by the City, that will be “designed to test the applicant’s knowledge of the

geography, history, historic sites, historic structures, historic objects and other places of

interest in the Center City Tourist Area.” 1 (Id. at 372.) Those who engage in conduct

covered by the Ordinance who do not have a tour guide certificate are subject to fines

and, for repeat offenders, loss of a business privilege license. Appellants challenge only

the portions of the Ordinance that make a tour guide certificate mandatory; in other


       1
         A tour guide would be exempt from taking the written exam, although not from
the Ordinance’s other requirements, if his or her employer offered its own educational
program that the City found to be “equivalent to or exceed[ing] the written examination.”
(R. at 373.)
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words, they would not object to a voluntary certification scheme.

         City Representative Melanie Johnson, who is responsible for “the promotion and

marketing of the City of Philadelphia” (id. at 68), testified at the hearing in the District

Court on the then-plaintiffs’ motion for a temporary and permanent injunction. Johnson’s

office would administer the tour guide certificate program, but she testified that the City

had neither the money nor the staff to develop the written test or other aspects of the tour

guide certificate program and that it had no immediate plans to do so. The budget crisis in

Philadelphia led to a hiring freeze and budget cuts, and the budget for the City

Representative’s office in 2010 was projected to be significantly less than that for 2009. 2

Johnson testified that enforcing the Ordinance was nonetheless “[a]bsolutely” important

to the City. (Id. at 119.) When Johnson was asked if she was “disavowing any intention of

enforcing the ordinance if [the City was] allowed to,” she responded, “Not at all.” (Id. at

122.)

         At oral argument before us, 3 however, the City said that it has “disavowed”

enforcing the Ordinance “for the foreseeable future” and agreed that, practically speaking,

the City cannot enforce the Ordinance until it develops the written test and puts into place

a process by which tour guides can obtain tour guide certificates. The City told us that the

disavowal will end when it announces the first written test on the City’s website and “in a


         2
             There is nothing in the record regarding the City’s budget for 2011 or future
years.
         3
      Appellants’ claims must remain ripe throughout the litigation, and the City’s
comments at oral argument are therefore pertinent to our ripeness analysis.
                                           4
newspaper of general circulation,” as the Ordinance requires. (See id. at 372.)

II.       JURISDICTION AND STANDARD OF REVIEW

          The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have

jurisdiction pursuant to 28 U.S.C. § 1291. Appellants do not challenge the Court’s factual

findings, and we exercise plenary review over the Court’s determination that the case is

not ripe. Presbytery of N.J. of Orthodox Presbyterian Church v. Florio, 40 F.3d 1454,

1462 (3d Cir. 1994).

III.      ANALYSIS

          The District Court held that the City’s “present inability to enforce [the Ordinance]

vitiates ripeness” and dismissed the complaint for lack of subject matter jurisdiction. (R.

at 2.) The only question before us is whether appellants’ free-speech challenge to the

Ordinance is ripe, despite the fact that the City’s financial difficulties prevent it from

developing the written test and other parts of the tour guide certificate program, which in

turn renders the City unable to enforce the Ordinance at this time or in the foreseeable

future.

          In analyzing ripeness, the inquiry is whether appellants have brought their claims

at the right time, i.e., whether the “dispute is sufficiently concrete” such that the District

Court could avoid issuing an advisory opinion. Peachlum v. City of York, 333 F.3d 429,

433 (3d Cir. 2003). To be ripe, there must be “a real and substantial controversy admitting

of specific relief through a decree of a conclusive character, as distinguished from an


                                                5
opinion advising what the law would be upon a hypothetical state of facts.” Presbytery,

40 F.3d at 1463 (internal quotation marks omitted). In determining whether a case is ripe,

we generally examine “the adversity of the interest of the parties, the conclusiveness of

the judicial judgment and the practical help, or utility, of that judgment.” 4 Step-Saver

Data Sys., Inc. v. Wyse Tech., 912 F.2d 643, 647 (3d Cir. 1990).

       Appellants’ facial free-speech challenge “is subject to a relaxed ripeness standard.”

Peachlum, 333 F.3d at 434. We have “allowed somewhat liberally” such challenges prior

to any government enforcement of a restriction on speech. Id. at 435. We do so because of

our concerns that (1) “a person will merely comply with an illegitimate statute rather than

be subjected to prosecution” and (2) “the government may choose never to put the law to

the test by initiating a prosecution, while the presence of the statute on the books

nonetheless chills constitutionally protected conduct.” Id. Appellants argue that the

second concern is precisely what is at issue here, but in this case there is no evidence that

the speech of any tour guide has been chilled. Given the City’s statement at oral argument

that it has “disavowed” enforcement of the Ordinance until it announces that a written test

will be administered, moreover, we see no reason that speech would be chilled before, at

the earliest, that announcement.




       4
        We may consider other factors in analyzing ripeness, but no party suggests that
we do so here. NE Hub Partners, L.P. v. CNG Transmission Corp., 239 F.3d 333, 342 n.9
(3d Cir. 2001).
                                           6
       We will proceed to analyze the ripeness of appellants’ free-speech claims

according to the three Step-Saver factors.

       A.     Adversity of Interest

       There may be adversity of interest without a “completed harm,” but “it is necessary

that there be a substantial threat of real harm and that the threat must remain real and

immediate throughout the course of the litigation.” Presbytery, 40 F.3d at 1463 (internal

quotation marks omitted). When a government body promises not to enforce a restriction

against a plaintiff, or at all, there is no longer “a substantial threat of real harm” because

“intervening events [have] remove[d] the possibility of harm.” Id.; see also Salvation

Army v. Dep’t of Cmty. Affairs, 919 F.2d 183, 192 (3d Cir. 1990) (holding that a claim

was not ripe as to certain regulations when there was “an express assurance that there will

be no enforcement” of those provisions). The District Court held that the City’s claimed

inability to enforce the Ordinance at this time is equivalent to a promise not to enforce the

Ordinance, and at oral argument the City went further and stated that it “disavowed”

enforcement of the Ordinance until it announces that a written test will be administered.

       In Presbytery, we held that the threat of prosecution for one individual plaintiff

was “real and substantial” because the state “refus[ed] to waive prosecution” against him

outside of his capacity as a member of the clergy. Presbytery, 40 F.3d at 1468 (internal

quotation marks omitted); see also Peachlum, 333 F.3d at 435 (citing Presbytery for the

proposition that “in cases involving fundamental rights, even the remotest threat of


                                               7
prosecution, such as the absence of a promise not to prosecute, has supported a holding of

ripeness where the issues in the case were ‘predominantly legal’ and did not require

additional factual development”). Appellants argue that they face the same threat as the

plaintiff in Presbytery because the City has not wholly disavowed enforcement of the

Ordinance but rather plans to enforce it at an unknown future time. Presbytery is,

however, distinguishable from this case. In Presbytery, there was no identifiable

impediment to the state’s enforcement of the statute against the individual plaintiff. Here,

by contrast, the City must do a good deal of work, most notably developing the written

test, before it can begin to enforce the Ordinance.

       We express no opinion as to when, if at all, this case will become ripe, much less

whether it may become ripe before the City announces the first written test. The only

question before us is whether the case is ripe now, where there is (1) a significant and

identifiable task – creating the tour guide certificate program – that the City must

complete before it is able to enforce the Ordinance, (2) no evidence in the record that the

City will create the program in the foreseeable future, and (3) no evidence that the speech

of anyone is being or has been chilled. Under these circumstances, we agree with the

District Court that there is not a substantial and immediate threat of real harm.

       B.     Conclusiveness of the Judicial Judgment

       “The conclusivity inquiry . . . goes to whether the parties’ rights will be

definitively decided by a declaratory judgment.” Step-Saver, 912 F.2d at 649 n.9. We ask


                                              8
“[w]hether issues are purely legal (as against factual)” and “[w]hether further factual

development would be useful.” NE Hub Partners, 239 F.3d at 342 n.9. We agree with the

District Court that a declaratory judgment would determine the rights of both parties, and

this factor therefore weighs in favor of ripeness.

       C.     Utility

       “The utility inquiry . . . goes . . . to whether the parties’ plans of actions [sic] are

likely to be affected by a declaratory judgment.” Step-Saver, 912 F.2d at 649 n.9. We look

at the “[h]ardship to the parties of withholding decision” and “[w]hether the claim

involves uncertain and contingent events.” NE Hub Partners, 239 F.3d at 342 n.9. The

District Court found that there was no utility because although a judgment in the then-

plaintiffs’ favor might put them “at ease,” they did not “demonstrate[] that having [the

Ordinance] on the books without present enforcement would cause real-world behavioral

modification or suppression of speech.” (R. at 20-21.) Regarding utility, appellants again

rely on Presbytery, in which the individual plaintiff claimed that he would violate the

restriction at issue regardless of the court’s decision and we nonetheless “assume[d that]

his willingness to do so [was] likely to be affected by resolution of th[e] action.”

Presbytery, 40 F.3d at 1470. We see no reason to make that assumption here, and we

agree with the District Court that a judgment would have no utility because there is no

evidence that it would have a real-world effect on anyone.




                                                9
IV.    CONCLUSION

       Having weighed the Step-Saver factors, we conclude that this case is not ripe, and

we will therefore affirm the order of the District Court.




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