                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 16 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT

JEFFREY HERSON; EAST BAY                         No. 10-16445
OUTDOORS, INC., a California
corporation,                                     D.C. No. 3:09-cv-04187-MHP

              Plaintiffs - Appellants,
                                                 MEMORANDUM *
  v.

CITY OF SAN CARLOS,

              Defendant - Appellee.



                  Appeal from the United States District Court
                      for the Northern District of California
                 Marilyn H. Patel, Senior District Judge, Presiding

                        Argued and Submitted May 9, 2011
                            San Francisco, California

Before: THOMAS, McKEOWN, and MURGUIA, Circuit Judges.

       Jeffrey Herson and East Bay Outdoor, Inc. (collectively “Herson”) appeal

the district court’s grant of summary judgment in his 42 U.S.C. § 1983 action

alleging that the City of San Carlos violated his First Amendment right to freedom

of expression by denying his building permit application. We affirm the district


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
court. Because the history of the case is familiar to the parties, we need not

recount it here.

      To establish standing under Article III of the United States Constitution, a

plaintiff must demonstrate: (1) an injury in fact; (2) a causal connection between

the injury and the defendant’s conduct; and (3) a likelihood that the injury can be

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

555, 560-61 (1992). A plaintiff challenging the denial of a permit application

under a city ordinance fails to establish redressability if the permit was also denied

under an alternative, constitutional provision of the ordinance. See Get Outdoors

II, LLC v. City of San Diego, 506 F.3d 886, 893 (9th Cir. 2007). As such, a

plaintiff must challenge every restriction under which the application was denied in

order to establish redressability. Id.

      Herson waived his challenge of the billboard restriction by not raising it in

his opening brief on appeal. Miller v. Fairchild Industries, Inc., 797 F.2d 727, 738

(9th Cir. 1986); see also McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th Cir. 2009)

(raising an issue at oral argument is insufficient to avoid waiver if it was not raised

in the briefs). Herson has therefore failed to establish that his injury is redressable

and he lacks standing to pursue his claim.

      AFFIRMED.


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