                                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________

                                 No. 10-3205
                                _____________

 THE CONSTITUTION PARTY OF PENNSYLVANIA; THE GREEN PARTY OF
 PENNSYLVANIA; HILLARY A. KANE, Chair; THE LIBERTARIAN PARTY OF
 PENNSYLVANIA; MICHAEL J. ROBERTSON, Chair; WES THOMPSON, Chair,

                                             Appellants

                                       v.

PEDRO A. CORTES, Secretary of the Commonwealth of Pennsylvania; THE JUSTICES
    OF THE SUPREME COURT OF PENNSYLVANIA.; THE JUDGES OF THE
    COMMONWEALTH COURT OF PENNSYLVANIA; CHARLES W. JOHNS,
 Prothonotary of the Supreme Court of Pennsylvania; MICHAEL F. KRIMMEL, Chief
  Clerk of the Commonwealth Court of Pennsylvania; CHET HARHUT; ATTORNEY
                          GENERAL OF PENNSYLVANIA
                                  _____________


                 On Appeal from the United States District Court
                    for the Eastern District of Pennsylvania
                            (D.C. No. 5:09-cv-01691)
                   District Judge: Hon. Lawrence F. Stengel

                   Submitted Under Third Circuit LAR 34.1(a)
                               March 17, 2011

            Before: BARRY, CHAGARES, and ROTH, Circuit Judges.

                             (Filed: May 19, 2011)

                                _____________

                                  OPINION
                                _____________
CHAGARES, Circuit Judge.

       The Constitution Party of Pennsylvania, the Green Party of Pennsylvania, the

Libertarian Party of Pennsylvania, Hillary Kane, Michael Robertson, and Wes Thompson

(the “Minor Parties”) appeal the District Court’s dismissal of their suit for lack of

standing and lack of ripeness. For the reasons set forth below, we will affirm.

                                              I.

       The Minor Parties brought this action seeking relief due to the operation of three

separate provisions of the Pennsylvania Election Code that, “independently and in

conjunction with the other challenged provisions, . . . collectively operate to freeze the

Minor Parties out of Pennsylvania’s electoral process.” Minor Parties’ Br. 3. The first of

these provisions is 25 Pa. Cons. Stat. Ann. § 2872.2, which requires minor parties,

defined as all parties with state-wide registration of under fifteen percent of registered

voters, to submit nominating petitions in order to appear on the general election ballot.

Next, the Minor Parties challenge 25 Pa. Cons. Stat. Ann. § 2937, which allows a private

individual to challenge a nominating petition and authorizes a court to award costs and

fees to the prevailing party as deemed appropriate. In 2006, the Pennsylvania Supreme

Court interpreted this provision to allow for the imposition of costs against the candidate

who filed the nominating petition. In re Nader, 905 A.2d 450 (Pa. 2006). In order to

avoid the possible imposition of these fees should their nominations fail under court

scrutiny, many Minor Party candidates allegedly began to withdraw their nominating

petitions when challenged, choosing to run as write-in candidates instead. According to

the Minor Parties, however, many counties do not ever count or certify the write-in votes,

                                              2
in violation of 25 Pa. Cons. Stat. Ann. § 3155. In sum, therefore, the Minor Parties allege

that their candidates are forced either to submit a nominating petition and risk the

imposition of tens of thousands of dollars of costs and fees should their petitions not

withstand scrutiny, or to run as write-in candidates and risk having the votes that were

cast for them ignored.

       The Minor Parties filed suit in the Eastern District of Pennsylvania, naming as

defendants Pedro Cortes, Secretary of the Commonwealth of Pennsylvania, Chet Harhut,

Commissioner of the Pennsylvania Bureau of Commissions, Elections, and Legislation,

Thomas Corbett, Attorney General of the Commonwealth of Pennsylvania, the Justices of

the Supreme Court of Pennsylvania, the Judges of the Commonwealth Court of

Pennsylvania, Charles Johns, Prothonotary of the Supreme Court of Pennsylvania, and

Michael Krimmel, Chief Clerk of the Commonwealth Court of Pennsylvania. All

defendants were named solely in their official capacities. The Amended Complaint

contains three counts: Count I, requesting a declaratory judgment that § 2872.2 is

unconstitutional as applied; Count II, seeking a declaratory judgment that § 2937 is

unconstitutional as applied; and Count III, seeking an injunction ordering Cortes and

Harhut to comply with § 3155.

       The defendants filed motions to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6), and the District Court granted these motions on March 31, 2010,

concluding that the Minor Parties lacked standing to bring their claims. In reaching this

conclusion, the District Court divided its consideration into two separate categories:

standing to seek injunctive relief and standing to seek declaratory relief. The majority of

                                             3
the District Court’s discussion focused on standing to seek injunctive relief. First, it

noted that it saw no actual or imminent injury in this case, as any chilling effect on access

to the ballot was hypothetical, the prior assessment of costs against candidates did not

make it likely that such costs would be assessed again, and there was no allegation that

costs and fees would be assessed against a party whose nomination petition was

submitted in good faith. It then concluded that there was no causation, as none of the

defendants in this case could file suit to challenge the nomination petitions, which is a

prerequisite for the imposition of costs, meaning that no injury could be caused without

the involvement of a third party. The District Court also noted that none of these parties

had the ability to change the law and concluded that any opinion issued on this subject

would be purely advisory and would not redress any injury to the Minor Parties.

Regarding standing to seek declaratory relief, the District Court only briefly stated that

there was no standing to do so because the parties did not have adverse legal interests.

       The District Court then addressed ripeness concerns for both injunctive and

declaratory relief. Again beginning with injunctive relief, the District Court stated that

the issues were not yet fit for adjudication because there were no concrete facts or

pending dispute to guide the court’s inquiry, and that there was no hardship in forcing the

Minor Parties to wait to challenge the law because they could appeal any award of fees in

state court after they were assessed. On the issue of declaratory relief, the District Court

reiterated its position that the parties did not have adverse legal interests, and also

reiterated its opinion that the Pennsylvania Supreme Court had not yet authorized the

award of fees against a party that had acted in good faith, making the threat of real harm

                                               4
quite low.

       Finally, and quite briefly, the District Court invoked the Rooker-Feldman doctrine

as an additional reason that it did not believe that it had jurisdiction over this case. The

District Court viewed this suit as meant to challenge the decisions of Pennsylvania’s state

courts in In re Nader and In re Rogers, 942 A.2d 915 (Pa. Commw. Ct. 2008), aff’d 959

A.2d 903 (Pa. 2008), and stated that it believed the instant case not to be functionally

different from a direct appeal of those cases to the District Court. For all of these

reasons, the District Court dismissed the Minor Parties’ Amended Complaint.

       Following the dismissal of their claims, the Minor Parties filed a motion to

reconsider with the District Court, arguing that the District Court improperly focused all

of its analysis on Count II of the Amended Complaint – their challenge to § 2937 – and

also raising several arguments that are again brought on appeal. The District Court

denied the motion to reconsider and noted that the analysis in its opinion on the motion to

dismiss applied equally to all counts of the Amended Complaint, as both Count I and

Count III relied on the allegation that § 2937 places an unconstitutional financial burden

on the Minor Parties, and without standing to challenge this aspect, the Minor Parties

must also lack standing to bring Counts I and III.

       The Minor Parties filed the instant appeal and argue that the District Court did not

properly consider Counts I or III before dismissing them, that the District Court erred in

its conclusion that the Minor Parties lacked standing to bring Count II as well as in its

conclusion that the claims in Count II were not ripe, and that the District Court erred in

its invocation of the Rooker-Feldman doctrine.

                                              5
                                              II.

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

jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a District Court’s

dismissal under Rule 12(b)(6), DP Enters. v. Bucks Cnty. Cmty. Coll., 725 F.2d 943, 944

(3d Cir. 1984), as well as over all jurisdictional questions, including those relating to

standing and ripeness. Belitskus v. Pizzingrilli, 343 F.3d 632, 639 (3d Cir. 2003). In

exercising this review, we are constrained, as was the District Court, to accept all factual

allegations in the complaint as true, and to view all inferences in the light most favorable

to the Minor Parties. DP Enters., 725 F.2d at 944.

                                             III.

                                              A.

       The main focus of this appeal is the Minor Parties’ assertion that the District Court

erred in dismissing Count II of their Amended Complaint. First, they assert that § 2937 is

facially unconstitutional. We need not address this issue, as the Amended Complaint is

explicit in only bringing as-applied challenges to the pertinent statutes, and arguments not

raised to the court below are waived. See Gass v. V.I. Tel. Corp., 311 F.3d 237, 246 (3d

Cir. 2002).

       The majority of the Minor Parties’ argument addresses the District Court’s

decision to dismiss Count II for lack of standing. It is well established that in order to

have standing, a plaintiff must demonstrate that he has suffered an injury, that there is a

causal connection between the defendant’s conduct and his injury, and that the injury will

likely be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S.

                                              6
555, 560-61 (1992). More specifically, any injury must be “concrete and particularized”

and “actual or imminent.” Id. at 560. As the Supreme Court recently noted, however,

“the injury required for standing need not be actualized. A party facing prospective

injury has standing to sue where the threatened injury is real, immediate, and direct.”

Davis v. FEC, 554 U.S. 724, 734 (2008).

       Even though “the injury-in-fact element is often determinative,” Toll Bros., Inc. v.

Twp. of Readington, 555 F.3d 131, 138 (3d Cir. 2009), in the present case we believe that

the Minor Parties’ allegations most clearly fail to establish causation. It appears that the

Minor Parties have alleged two major injuries: first, that the imposition of fees has made

it more difficult to recruit candidates to place their names on the ballot; and second, that

individual candidates who have agreed to run for their respective parties have withdrawn

their nominating petitions when challenged rather than risk the imposition of fees.

Mindful that “the proof required to establish standing increases as the suit proceeds,”

Davis, 554 U.S. at 734, there is simply no allegation in the Amended Complaint, other

than conclusory assertions, that the potential imposition of fees is responsible for the

recruitment difficulties. The District Court could not conclude that the increased

difficulty in recruitment is caused by the potential imposition of fees and not by a change

in general public opinion, a change in the effectiveness of recruitment strategies or party

leadership, or any multitude of other factors that could result in a minor party fielding a

candidate for election in one year and failing to do so in a subsequent year. In other

words, the District Court could not conclude “that the defendant’s challenged actions, and

not the actions of some third party, caused the plaintiff’s injury.” Toll Bros., 555 F.3d at

                                              7
142. Further, any injury that occurred as a result of individuals withdrawing their

nominating petitions was caused by those individuals’ voluntary choice to withdraw their

petitions, and not by any action on the part of defendants.1 In the absence of a showing

of causation, we must conclude that the Minor Parties lack standing to bring this case.

       Having concluded that no causation can be established, we need not consider the

issue of redressability or whether the claims are ripe. Without all three elements of

standing, there is no case or controversy as is required by Article III of the Constitution,

and we are without jurisdiction to hear the claim. For the reasons stated above, we

conclude that the Minor Parties did not have standing to bring their claims, and will

affirm the District Court’s order of dismissal.

                                              B.

       The Minor Parties also argue that the District Court erred in dismissing Counts I

and III of their Amended Complaint without considering the substance of those counts.

They assert that the District Court’s attempt to cure this lack of analysis by asserting, in

its opinion denying the motion to reconsider, that the discussion of Count II applied to

Counts I and III as well, is insufficient. They state that the claims in Count I and Count

III did not rely on Count II, as the District Court seemed to assume, and urge this Court to

reverse the dismissal of those counts as well.


1
 We note that even if causation could be established as to this injury that there would be
no redressability. All of these individuals have already withdrawn their nominating
petitions, and the Minor Parties do not allege that any of these individuals will again file
a nominating petition should the possible imposition of fees be removed. For this reason,
even if we were to conclude that defendants’ actions were the indirect cause of the Minor
Parties’ injury, we would still conclude that they lacked standing to bring the claim.
                                              8
       Although we conclude that the District Court did not err in dismissing the Minor

Parties’ claims for lack of standing, the Minor Parties still were entitled to an analysis of

their standing on all counts. After reviewing the Amended Complaint, however, we are

unwilling to state that the District Court erred in asserting that the analysis of Count II

applied with equal force to Counts I and III. Count I seeks a declaratory judgment that §

2872.2 is unconstitutional because it imposes a burden on Minor Party candidates that is

not imposed on major party candidates and that functions to chill the exercise of their

First Amendment rights. The District Court had already analyzed the Minor Parties’

standing to bring a suit for declaratory relief in analyzing Count II, and there are no

allegations in the Amended Complaint that would lead us to believe that the parties, their

interests, or the adversity of their interests would change at all regarding Counts I and II.

Count III was brought for injunctive relief to enforce the provisions of § 3155. Although

the injury alleged is sufficiently different that the standing analysis between Counts II

and III may differ, the ripeness analysis remains the same; the Minor Parties are raising a

factual issue regarding the enforcement of a law, and it is certainly reasonable to

conclude that there would be no hardship in forcing the Minor Parties to wait until the

votes had allegedly not been counted or certified before seeking injunctive relief. For

these reasons, we believe that the District Court adequately addressed Counts I and III by

incorporating its analysis from the motion to dismiss, and will not reverse the District

Court merely for its failure to repeat its analysis on each separate count.

                                              C.

       The Minor Parties’ final contention is that the District Court erred in invoking the

                                              9
Rooker-Feldman doctrine as a ground for refusing to exercise jurisdiction over the case.

As we have concluded that the District Court appropriately determined that the parties

lacked standing, we need not evaluate the application of the Rooker-Feldman doctrine to

the present case.

                                            IV.

       For the foregoing reasons, we will affirm the District Court’s dismissal of the case.




                                            10
