     07-5739-cv
     International Action Center v. City of New York

1                           UNITED STATES COURT OF APPEALS
2                               FOR THE SECOND CIRCUIT


3                                  August Term 2008


4    Argued:     March 6, 2009                    Decided:   November 17, 2009

5                               Docket No. 07-5739-cv


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7    INTERNATIONAL ACTION CENTER,

8                      Plaintiff-Appellant,

9                      v.

10   CITY OF NEW YORK,

11                     Defendant-Appellee.
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14   Before: PARKER, Circuit Judge, and CHIN, District Judge.*

15               Appeal from a judgment of the United States District

16   Court for the Southern District of New York (Stein, District J.)

17   granting in part and denying in part defendant-appellee's motion

18   for summary judgment.       Plaintiff-appellant contends,



           *
               Honorable Denny Chin, United States District Judge for
     the Southern District of New York, sitting by designation. The
     Honorable Sonia Sotomayor, originally a member of this panel, was
     elevated to the United States Supreme Court on August 8, 2009.
     The two remaining members of the panel, who are in agreement,
     have decided this appeal. See 28 U.S.C. § 46(b); Local Rule §
     0.14(b).
1    inter alia, that the district court erred in concluding that a

2    New York City regulation banning new parades on Fifth Avenue does

3    not violate the First Amendment.

4                AFFIRMED.

5                                Jeffrey E. Fogel, Esq., Charlottesville,
6                                     Virginia (Gideon Orion Oliver, Esq.
7                                     and Palyn Hung, Esq., New York, New
8                                     York, on the brief), for Plaintiff-
9                                     Appellant.

10                               Scott Shorr, Esq. (Ronald E. Sternberg,
11                                    Esq., on the brief), for Michael A.
12                                    Cardozo, Corporation Counsel of the
13                                    City of New York, for Defendant-
14                                    Appellee.

15   CHIN, District Judge

16               Fifth Avenue in Manhattan is a historic, popular, and

17   often congested thoroughfare.    It runs adjacent to Central Park

18   and down the center of Manhattan's busy midtown business

19   district.    Every year, fifteen large parades march along some

20   stretch of Fifth Avenue.    The parades are enjoyed by viewers from

21   all over the world.     Although the parades provide entertainment

22   and celebration, they also put a strain on New York City (the

23   "City") by requiring street closures, causing traffic congestion,

24   and disrupting business.    Accordingly, a City regulation (the

25   "Fifth Avenue Rule") -- that began as an informal policy in the

26   1970s and was codified in 2001 -- bans any "new" parades on Fifth

27   Avenue.

28               In March 2005, plaintiff-appellant International Action


                                      - 2 -
1    Center ("IAC") filed applications for permits to march on two

2    sections of Fifth Avenue.    The City, pursuant to the Fifth Avenue

3    Rule, denied IAC the use of Fifth Avenue.    In lieu of a permit to



4    march on Fifth Avenue, the City granted IAC a permit to march

5    along a different route.

6                IAC alleges that the Fifth Avenue Rule is a content-

7    based regulation that violates the First Amendment by

8    discriminating against parades related to current events.    For

9    the following reasons, we conclude that the Fifth Avenue Rule

10   does not violate the First Amendment.     IAC also argues that the

11   injunction issued by the district court curtailing the City's

12   discretion in granting special permits should be expanded.    We

13   disagree.    Finally, we hold that IAC does not have standing to

14   challenge a provision of the parade rules that imposes penalties

15   for a violation because it has not demonstrated that it has

16   suffered or will suffer an injury-in-fact.    Accordingly, the

17   judgment of the district court is affirmed.

18                                BACKGROUND

19   A.   New York City Parades

20               New York City Administrative Code (the "Code") § 10-110

21   provides the statutory basis for the issuance of parade permits.

22   The Police Commissioner of the New York City Police Department

23   (the "NYPD") is vested with the power to issue permits for any

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1    "procession, parade, or race . . . [on] any street or in any

2    public place."    N.Y.C. Admin. Code § 10-110(a).    The NYPD issues

3    permits for approximately 700 parades per year in the five

4    boroughs.

5                The Code places qualifications upon the Commissioner's

6    authority in various circumstances, two of which are relevant

7    here.   First, the Commissioner is not permitted to "grant a

8    permit for the use of any street or any public place, or material

9    portion thereof, which is ordinarily subject to great congestion

10   or traffic and is chiefly of a business or mercantile character."

11   N.Y.C. Admin. Code § 10-110(a)(2).      Second, "[s]pecial permits

12   for occasions of extraordinary public interest, not annual or

13   customary, or not so intended to be, may be granted by the

14   commissioner for any street or public place, and for any day or

15   hour, with the written approval of the mayor."      N.Y.C. Admin.

16   Code § 10-110(a)(4) (the "Special Permit Provision").      In 2001,

17   the City further limited the Commissioner's discretion in

18   granting special permits by limiting these to "celebrations

19   organized by the City honoring the armed forces; sports

20   achievements or championships; world leaders and extraordinary

21   achievements of historic significance."      38 R.C.N.Y. § 19-01(b).

22               The Code also provides for the consequences of a

23   violation:



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1                Every person participating in any procession,
2                parade or race, for which a permit has not
3                been issued when required by this section,
4                shall, upon conviction thereof, be punished
5                by a fine of not more than twenty-five
6                dollars, or by imprisonment for not exceeding
7                ten days, or by both such fine and
8                imprisonment.

9    N.Y.C. Admin. Code § 10-110(c) (the "Violations Provision").

10   B.   Fifth Avenue Parades

11               Fifth Avenue is a historically preferred route for New

12   York City parades and is considered by many the most desirable

13   parade venue in the City.

14               From 1955 to 1969, the number of parades along Fifth

15   Avenue increased from ten to eighteen.    As a result, in 1971, the

16   City adopted an informal policy barring new Fifth Avenue

17   parades.1   In 2001, the informal policy was codified as a

18   regulation:    "[p]ermits will be disapproved under § 10-110 of the

19   administrative code [if] . . . [t]he application seeks to hold a

20   parade on Fifth Avenue in the borough of Manhattan, unless the

21   parade was held at that location prior to the promulgation of

22   these rules."    38 R.C.N.Y. § 19-04(d)(viii).2   The City explains

          1
               The City allowed four new annual parades to replace
     four discontinued parades between 1976 and 1984. The four new
     parades were the International Society for Krishna Consciousness
     Parade, the Pulaski Day Parade, the Marathon, and the Heritage of
     Pride Parade.
          2
               Prior to 2007, the Fifth Avenue Rule applied to Fifth
     Avenue from Washington Square Park to 133rd Street. Effective
     February 25, 2007, the City amended the ban to apply from 15th

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1    that the policy was intended to address "the over-saturation" of

2    such events "in one of the most congested sections of the City --

3    midtown Manhattan."   Int'l Action Ctr. v. City of New York, No.

4    05 Civ. 2880, 2006 U.S. Dist. LEXIS 93387 (S.D.N.Y. Dec. 26,

5    2006) (internal quotation marks and citation omitted).

6    C.   IAC's March

7               In March 2005, IAC applied for a permit to march along

8    two lanes of Fifth Avenue from 100th Street to 102nd Street,

9    where it had a permit for a rally in Central Park.   IAC filed a

10   second application for the use of two lanes of Fifth Avenue after

11   the rally, from 90th Street to 79th Street, for a brief

12   demonstration in front of the Mayor's home.   The applications

13   were filed on behalf of the Troops Out Now Coalition, which IAC

14   founded.   The marches were intended to protest and commemorate

15   the second anniversary of the invasion of Iraq.   Relying on the

16   Fifth Avenue Rule, the City denied IAC the use of Fifth Avenue.

17   IAC was granted a permit to march along an alternative route that

18   did not include Fifth Avenue.3

19   D.   Procedural History

20              On March 16, 2005, IAC commenced this action, pursuant



     Street to 114th Street.
          3
               The alternative route included Madison Avenue; Lenox
     Avenue; 112th Street; Lexington Avenue; 102nd Street; Central
     Park (rally site); 90th Street; and Park Avenue.

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1    to 42 U.S.C. § 1983, alleging that the Fifth Avenue Rule violates

2    the First Amendment to the United States Constitution.    At the

3    outset, prior to the completion of discovery, the City moved for

4    summary judgment.    The district court denied the City's motion

5    without prejudice and granted IAC leave to file an amended

6    complaint challenging the Special Permit Provision.    See Int'l

7    Action Ctr., 2006 U.S. Dist. LEXIS 93387.

8              Following the completion of discovery, the City renewed

9    its motion for summary judgment and IAC cross-moved.    The

10   district court upheld the Fifth Avenue Rule as content neutral

11   and an appropriate time, place, or manner restriction.    See Int'l

12   Action Ctr. v. City of New York, 522 F. Supp. 2d 679, 681

13   (S.D.N.Y. 2007).    The district court did, however, enjoin the

14   City from granting permits for new Fifth Avenue parades pursuant

15   to the Special Permit Provision "unless the requested use fits

16   within the four categories set forth in" the Special Permit

17   Provision.   Id.   The court also held that IAC lacked standing to

18   challenge the Violations Provision.     Id. at 693.

19             This appeal followed.

20                                DISCUSSION

21             We review de novo a district court's ruling on

22   cross-motions for summary judgment, in each case construing the

23   evidence in the light most favorable to the non-moving party.

24   White River Amusement Pub, Inc. v. Town of Hartford, 481 F.3d

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1    163, 167 (2d Cir. 2007).   Summary judgment is appropriate only if

2    we conclude that the case presents "no genuine issue as to any

3    material fact and that the movant is entitled to judgment as a

4    matter of law."   Fed. R. Civ. P. 56(c).

5               First, IAC argues that the Fifth Avenue Rule favors

6    cultural parades over marches responsive to current events, and,

7    thus, discriminates on the basis of content.    Second, even

8    assuming the Fifth Avenue Rule is content neutral, IAC argues

9    that it does not satisfy intermediate scrutiny.    Third, IAC

10   argues that the injunction imposed by the district court should

11   be expanded.   Finally, IAC argues that the Violations Provision

12   is unconstitutional because it fails to incorporate a requirement

13   that the accused knew that the NYPD did not grant the march a

14   permit.   We discuss each argument in turn.

15   A.   Is the Fifth Avenue Rule Content Neutral?

16              IAC argues that the Fifth Avenue Rule imposes content-

17   based restrictions.   A content-based restriction is subject to

18   strict scrutiny, "such that it could only be justified by a

19   compelling governmental interest and would have to be narrowly

20   tailored to achieve its intended purpose."    Cablevision Sys.

21   Corp. v. F.C.C., 570 F.3d 83, 89 (2d Cir. 2009).    For the

22   following reasons, we hold that the Fifth Avenue Rule is content

23   neutral, and thus subject to intermediate scrutiny.    See id.



                                    - 8 -
1    at 97.

2                The "principal inquiry in determining content

3    neutrality . . . is whether the government has adopted a

4    regulation of speech because of disagreement with the message it

5    conveys."    Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

6    A regulation "justified without reference to the content of the

7    regulated speech" is content neutral.    Mastrovincenzo v. City of

8    New York, 435 F.3d 78, 98 (2d Cir. 2006) (internal quotation

9    marks and citation omitted).    "But while a content-based purpose

10   may be sufficient in certain circumstances to show that a

11   regulation is content based, it is not necessary to such a

12   showing in all cases."    Turner Broad. Sys., Inc. v. F.C.C., 512

13   U.S. 622, 642 (1994).

14               IAC argues that the Fifth Avenue Rule "prohibits the

15   use of Fifth Avenue for marches that are responsive to current

16   events, but allows its use for traditional, cultural parades."

17   Thus, according to IAC, the Fifth Avenue Rule discriminates

18   against public discussion on the topic of current events.    In

19   support of its argument that the Fifth Avenue Rule is content

20   based, IAC cites Boos v. Barry, in which the Supreme Court held

21   that a D.C. regulation prohibiting protest signs of a foreign

22   government within 500 feet of that government's embassy was a

23   content-based restriction.    485 U.S. 312, 318-19 (1998) ("One

24   category of speech has been completely prohibited . . . .    Other


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1    categories of speech, however, . . . are permitted.").    The

2    regulation at issue in Boos was "justified only by reference to

3    the content of speech," and, thus, the Supreme Court concluded it

4    was a content-based regulation.   Id. at 321.   The other cases

5    cited by IAC similarly hold that regulations that differentiate

6    between types of speech or discriminate against the press, or

7    sections of the press, are content based.   See, e.g., Republican

8    Party of Minn. v. White, 536 U.S. 765 (2002) (regulation

9    prohibiting judicial candidates from announcing their views on

10   disputed political issues); Ark. Writers' Project, Inc. v.

11   Ragland, 481 U.S. 221, 229 (1987) (tax scheme treating certain

12   magazines "less favorably" than others); Minneapolis Star &

13   Tribune Co. v. Minn. Comm'r of Revenue, 460 U.S. 575, 591 (1983)

14   (tax singling out the press, and targeting a small group of

15   newspapers); Carey v. Brown, 447 U.S. 455, 460-61 (1980) (statute

16   prohibiting picketing of residences with exceptions for peaceful

17   labor picketing).

18              In contrast, the Fifth Avenue Rule does not seek to

19   regulate messages or distinguish between different types of

20   speech.   The Fifth Avenue Rule applies to all "new" parades,

21   irrespective of their content.    There is nothing in the record to

22   suggest that the City has banned new parades on Fifth Avenue

23   because it is seeking to restrict speech relating to current



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1    events.   Although the Fifth Avenue Rule may indeed have "an

2    incidental effect on some speakers or messages but not others,"

3    that is true of many content-neutral regulations.    Ward v. Rock

4    Against Racism, 491 U.S. 781, 791 (1989).    Such an incidental

5    effect does not convert a content-neutral regulation into a

6    content-based one.

7               IAC's arguments that the Fifth Avenue Rule

8    discriminates against parades relating to current events is

9    unavailing.    A new parade in honor of a particular nation --

10   which would be a cultural parade as opposed to one relating to

11   current events -- would be denied a permit to march along Fifth

12   Avenue in the same way IAC's permit application was denied.

13   Indeed, many groups have applied for permits to march in honor or

14   celebration of a variety of topics and have been denied permits

15   under the Fifth Avenue Rule.    For example, in 2001, six groups

16   applied for Fifth Avenue permits:    (1) EDB Conglomerado; (2)

17   Dominican Day; (3) Philippine's Independence Day Parade; (4)

18   Turkish Parade; (5) Marijuana March; and (6) Asociacion Tepeyac

19   de New York.    All six were denied Fifth Avenue parade routes.

20   The Fifth Avenue Rule applies irrespective of content, and, thus,

21   the Fifth Avenue Rule is content neutral.

22   B.   Does the Fifth Avenue Rule Meet Intermediate Scrutiny?

23              A content-neutral time, place, or manner regulation

24   must meet intermediate scrutiny.    That is, the regulation must

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1    "serve a significant government interest, be narrowly tailored to

2    serve that interest, and leave open ample alternative channels of

3    communication."    Ward, 491 U.S. at 804.   Moreover,

4    "Government-imposed restrictions on time, place, or manner of

5    speech in a public forum will fail the neutrality requirement if

6    they confer overly broad discretion on the regulating officials."

7    Hous. Works, Inc. v. Kerik, 283 F.3d 471, 478 (2d Cir. 2002).       As

8    explained below, the Fifth Avenue Rule satisfies intermediate

9    scrutiny.

10        1.     Significant Government Interest

11               It is not disputed that the City has a significant

12   interest "in keeping its public spaces safe and free of

13   congestion."    Bery v. City of New York, 97 F.3d 689, 697 (2d Cir.

14   1996).    In addition, the City has a "substantial interest in

15   protecting its citizens from unwelcome noise," Ward, 491 U.S. at

16   796 (internal quotation marks and citation omitted), and, more

17   generally, "in attempting to preserve the quality of urban life."

18   City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50 (1986)

19   (internal quotation marks and citation omitted).

20               IAC argues that the interest claimed by the City is

21   significantly undermined because it has allowed new parades on

22   Fifth Avenue despite the Fifth Avenue Rule.     First, in October

23   2004, the NYPD allowed Critical Mass to hold a bicycle ride on a

24   portion of Fifth Avenue.    The City explains that on the eve of

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1    the scheduled ride, the City lost its motion for a preliminary

2    injunction banning the ride and the court suggested that the

3    parties negotiate a route.     See Bray v. City of New York, 346 F.

4    Supp. 2d 480, 492 (S.D.N.Y. 2004).       The last-minute negotiations

5    inadvertently disregarded the Fifth Avenue Rule.      Second, on

6    December 16, 2006, in the wake of the Sean Bell shooting, which

7    rattled the City, the City again allowed a new march along Fifth

8    Avenue.   The group marching, Shopping for Justice, was led by

9    Reverend Al Sharpton, who had previously vowed to have tens of

10   thousands of participants march on Fifth Avenue with or without

11   NYPD approval.   To encourage a peaceful march, the NYPD allowed

12   the march on Fifth Avenue despite the Fifth Avenue Rule.

13              Hence, the two departures were unique and isolated.

14   They do not show that the City's stated interest in reducing

15   congestion, limiting traffic, and minimizing business disruptions

16   in midtown Manhattan is pretextual or not significant.

17        2.    Narrowly Tailored

18              IAC argues that the Fifth Avenue Rule is not narrowly

19   tailored because it bans a "substantial quantity" of speech in a

20   way that does not serve the City's interest in promulgating the

21   restriction.

22              A content-neutral time, place, or manner restriction

23   "need not be the least restrictive or least intrusive means" of



                                     - 13 -
1    serving the government's legitimate interests.   Ward, 491 U.S. at

2    798.   Indeed, the narrow tailoring requirement "is satisfied so

3    long as the regulation promotes a substantial government interest

4    that would be achieved less effectively absent the regulation."

5    Id. at 799 (internal quotation marks and citation omitted).

6               IAC argues that the fifteen annual parades do not use

7    the full length of Fifth Avenue, and thus the Fifth Avenue Rule

8    is overly broad.   The City, however, provides an explanation:

9    four annual parades take place on Fifth Avenue between 15th and

10   42nd Streets; eleven parades travel some stretch of Fifth Avenue

11   between 42nd and 59th Streets; eleven parades travel some stretch

12   of Fifth Avenue between 59th and 72nd Streets (and seven parades

13   also start or end in this section); four parades take place on

14   Fifth Avenue between 72nd and 86th Streets (and two disperse in

15   the area); four large parades use Fifth Avenue from 86th through

16   96th Streets as their dispersal areas; and Fifth Avenue between

17   96th and 114th Streets contains a hospital, fire house, and

18   health care center.

19              Although the question is not without difficulty, we

20   believe that the 100-block ban is sufficiently narrowly tailored

21   to serve the municipal interests that we have identified.   The

22   record reflects the City's belief -- based on its considerable

23   knowledge of traffic patterns and the effects of street

24   closures -- that interruptions in the flow of traffic along the

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1    upper reaches of Fifth Avenue can have adverse consequences on

2    midtown traffic.   Like the district court, we decline to

3    substitute our opinion for the judgment of the City

4    decisionmakers.    See Int'l Action Ctr. v. City of New York, 522

5    F. Supp. 2d 679, 687 (S.D.N.Y. 2007); Carew-Reid v. Metro.

6    Transp. Auth., 903 F.2d 914, 917 (2d Cir. 1990) ("[I]f the scope

7    of the regulation is not substantially broader than required to

8    secure the governmental interest, the regulation is not invalid

9    simply because a court, second-guessing the decisions of the

10   governmental body, discerns some less-restrictive alternative to

11   the regulation.").   Because the Fifth Avenue Rule promotes a

12   significant government interest that would not be satisfied as

13   well without it, the Fifth Avenue Rule is narrowly tailored.

14        3.    Alternative Channels

15              IAC argues that Fifth Avenue has a "unique character"

16   and "historic role," and, thus, other thoroughfares are

17   inadequate alternative channels.   While Fifth Avenue does indeed

18   have a unique character, the law does not require that

19   alternative channels be "perfect substitutes."   Mastrovincenzo v.

20   City of New York, 435 F.3d 78, 101 (2d Cir. 2006).    The Fifth

21   Avenue Rule leaves open all other streets in the City for

22   parades.   In the last nine years, IAC has conducted eleven

23   parades in the City despite the Fifth Avenue Rule.    Thus,



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1    adequate alternative channels of communication exist.

2    C.   Should the Injunction Be Expanded?

3              The City has not cross-appealed the district court's

4    injunction, but IAC argues that the injunction does not go far

5    enough.

6              In August 2004, the Mayor approved a United for Peace

7    and Justice ("UPJ") protest against the Republican National

8    Convention, which proceeded on a stretch of Fifth Avenue.    The

9    UPJ protest did not -- and the City admits as much -- meet the

10   requirements of the Special Permit Provision.    The City argued

11   that the UPJ permit fit the spirit and intent of the Special

12   Permits Provision.   The district court found that the City -- in

13   permitting the UPJ march and not the IAC march -- made a content-

14   based distinction.   Thus, the district court concluded that the

15   City's discretion to determine which parades satisfy the Special

16   Permits Provision was "effectively unconstrained."    Int'l Action

17   Ctr., 522 F. Supp. 2d at 692.    The district court enjoined the

18   City from granting permits for new parades on Fifth Avenue in

19   violation of the Fifth Avenue Rule, unless the requested use fits

20   squarely within the categories enumerated in the regulation.

21             On appeal, IAC argues that the injunction should be

22   broadened to apply to parades that the City authorizes without a

23   permit.   We conclude that an enlargement of the injunction is not



                                     - 16 -
1    necessary.   The City does not have the discretion to authorize a

2    parade without a permit in any case.     The restrictions are clear:

3    marches may not proceed without a permit; new parades are not

4    allowed on Fifth Avenue; exceptions to the Fifth Avenue Rule must

5    meet the Special Permit Provision; and, the City is enjoined from

6    granting permits to marches that do not definitively meet the

7    requirements of the Special Permit Provision.    Accordingly, we

8    affirm the district court's injunction.

9    D.   Does IAC Have Standing to Challenge the Violations

10        Provision?

11             Finally, IAC argues that the Violations Provision is

12   facially unconstitutional because it provides for strict

13   liability in violation of the First Amendment.    IAC does not have

14   standing to challenge this provision.    A plaintiff has Article

15   III standing to bring suit if

16             (1) it has suffered an "injury in fact" that is
17             (a) concrete and particularized and (b) actual or
18             imminent, not conjectural or hypothetical; (2) the
19             injury is fairly traceable to the challenged
20             action of the defendant; and (3) it is likely, as
21             opposed to merely speculative, that the injury
22             will be redressed by a favorable decision.

23   Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,

24   528 U.S. 167, 180-81 (2000).    IAC argues that it has a

25   significant First Amendment interest in communicating its message

26   in such a way as to stir bystanders to "join spontaneously."    IAC


                                     - 17 -
1    submits that the strict liability regime injures IAC because it

2    will "chill some from joining its marches, for fear of

3    prosecution, even when those marches are permitted."

4              IAC failed to provide sufficient evidence that it has

5    or will suffer an injury-in-fact.   The "chill" on those that may

6    spontaneously join IAC's marches is purely conjectural.   See

7    Latino Officers Ass'n v. Safir, 170 F.3d 167, 170 (2d Cir. 1999)

8    ("Allegations of a subjective chill [of First Amendment rights]

9    are not an adequate substitute for a claim of specific present

10   objective harm or a threat of specific future harm." (internal

11   quotation marks and citation omitted)).   Accordingly, IAC does

12   not have standing to pursue this claim.

13                              CONCLUSION

14             For the foregoing reasons, we AFFIRM the judgment of

15   the District Court.




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