                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-2117


PAUL F. KENDALL; FRANK MARTIN; PHILLIP ROUSSEAU,

                Plaintiffs - Appellants,

          and

BOBBIE ATHEY; LARRY ATHEY; JOHN MEY; JANET MEY; DENISE EDEN;
PAUL EDEN; KNUT ELLENES; ELEANORE ELLENES; ORAL FOLKS; SUE
FOLKS,

                Plaintiffs,

          v.

HOWARD COUNTY, MARYLAND; BARBARA MCFAUL COOK, Individually;
PAUL JOHNSON, Individually; LYNN ROBESON, Individually;
MARSHA    S.   MCLAUGHLIN,   Individually;   JAMES   IRVIN,
Individually; CINDY HAMILTON, Individually; CHARLES F.
DAMMERS, Individually,

                Defendants - Appellees.



                              No. 09-2210


PAUL F. KENDALL; FRANK MARTIN; PHILLIP ROUSSEAU,

                Plaintiffs - Appellees,

          and

BOBBIE ATHEY; LARRY ATHEY; JOHN MEY; JANET MEY; DENISE EDEN;
PAUL EDEN; KNUT ELLENES; ELEANORE ELLENES; ORAL FOLKS; SUE
FOLKS,

                Plaintiffs,
           v.

HOWARD COUNTY, MARYLAND; BARBARA MCFAUL COOK, Individually;
PAUL JOHNSON, Individually; LYNN ROBESON, Individually;
MARSHA    S.   MCLAUGHLIN,   Individually;   JAMES   IRVIN,
Individually; CINDY HAMILTON, Individually; CHARLES F.
DAMMERS, Individually,

                Defendants - Appellants.



Appeals from the United States District Court for the District
of Maryland, at Baltimore.  J. Frederick Motz, District Judge.
(1:09-cv-00369-JFM)


Argued:   January 25, 2011                 Decided:   April 21, 2011


Before NIEMEYER, DUNCAN, and KEENAN, Circuit Judges.


Vacated and remanded with instructions by unpublished per curiam
opinion.


ARGUED:      Susan    Baker   Gray,   Highland,    Maryland, for
Appellants/Cross-Appellees.     Melissa Shane Whipkey, HOWARD
COUNTY   OFFICE    OF   LAW,   Ellicott   City,    Maryland, for
Appellees/Cross-Appellants.    ON BRIEF:     Margaret Ann Nolan,
County Solicitor, Louis P. Ruzzi, Senior Assistant County
Solicitor, HOWARD COUNTY OFFICE OF LAW, Ellicott City, Maryland,
for Appellees/Cross-Appellants.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

      Thirteen residents and registered voters (“Residents”) of

Howard County, Maryland, commenced this action under 42 U.S.C.

§ 1983 against Howard County and seven of its officers in their

individual capacities, alleging violations of the Howard County

Charter    and    the    First       and       Fourteenth    Amendments           to    the   U.S.

Constitution.           The    Residents          allege    that        the    Howard     County

Council    (“County       Council”)            improperly       enacted       legislation       by

resolution       rather       than        by   “original        bill” ∗    and     that       these

improper      procedures       violated          their     rights         under    the    Howard

County Charter and the First and Fourteenth Amendments.                                   On the

defendants’ motion to dismiss, the district court elected to

abstain    under      Burford        v.    Sun    Oil    Co.,     319     U.S.    315     (1943),

citing    the    presence      of     complex          questions    of     state       law.     On

appeal from the district court’s order, we conclude that the

Residents lacked standing to bring this action and therefore the

district court lacked subject matter jurisdiction.                                Accordingly,

we   vacate     the   court’s        order       and    remand     with       instructions      to

dismiss the action.




      ∗
       According to the Residents, a resolution is “a measure
adopted by the Council having the force and effect of law but of
a temporary or administrative character,” whereas an original
bill is used for “legislative acts,” which are “subject to
petitioning to referendum.”


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       In their complaint, the Residents alleged that, on multiple

occasions, the County Council used an improper procedure for

taking legislative action, contending that the County Council

“used the mechanism of ‘resolution’ and other means to insulate

certain      actions    undertaken,      usually     on     behalf    of    favored

constituents, from challenge by referendum,” in violation of the

Howard County Charter.        Section 202(g) of the Charter provides:

       Any amendment, restatement or revision to the Howard
       County   General  Plan,   the  Howard   County  Zoning
       Regulations or Howard County Zoning Maps, other than a
       reclassification map amendment established under the
       “change and mistake” principle set out by the Maryland
       Court of Appeals, is declared to be a legislative act
       and may be passed only by the Howard County Council by
       original bill in accordance with the legislative
       procedure set forth in Section 209 of the Howard
       County Charter.    Such an act shall be subject to
       executive veto and may be petitioned to referendum by
       the people of the county pursuant to Section 211 of
       the Charter.

They also assert that six sections of the Howard County Code are

facially     unconstitutional      because     “they      purport    to    authorize

governmental     approval     of   actions      within     the   terms     of   this

charter provision by other than original bill, thus making the

approval not subject to petitioning to referendum,” thus denying

them their First and Fourteenth Amendment rights.                    In addition,

the Residents “contest a variety of individual decisions . . .

made    by   other     than   original       bill   thus    circumventing       [the

Residents’]     right    of   referendum.”           Finally,       the    Residents

“challenge a number of discrete actions undertaken primarily by

                                         4
executive      branch      [officials]      without   any     purported     authority

which they allege fall within the actions/activities covered by

one or both o[f] these charter provisions.”

     Determining that abstention was appropriate under Burford

v.   Sun   Oil      Co.,    319   U.S.   315     (1943),      the    district      court

dismissed      without     prejudice     the    claims   of    the    complaint      for

equitable      or    discretionary       relief,      stayed        the   claims    for

damages, and invited the parties to pursue their case in state

court.     Following the district court’s invitation, the Residents

filed suit in the Circuit Court for Howard County, raising their

state    law   claims      and    stating    their    desire    to    reserve      their

federal claims for federal court.               They also filed this appeal.

     On appeal, the Residents assert that their complaint seeks

to vindicate important free speech rights under the First and

Fourteenth Amendments insofar as the

     supplanting of original bills . . . with resolutions
     and administrative acts[] represented in each case a
     direct affront to and usurpation of the political
     power and governing authority of the People of Howard
     County.    A decision made to utilize a resolution
     instead of an original bill directly diminishes the
     quantum of free speech by preventing the people from
     associating to oppose a legislative action approved by
     the Howard County Council.

Elaborating, they explain:

     The actions of drafting a petition, submitting it for
     approval to the Board of Elections, organizing for
     circulating the petition, building coalitions of
     support, and finally the circulation of the petition
     for referendum involve the full range and scope of

                                            5
        First Amendment rights, petitioning the government for
        redress of grievances, freedom of association, freedom
        of speech, and culminating in the right to vote. The
        deliberate refusal of the County to utilize the
        mechanism of the original bill completely eradicates
        this process, thus totally and completely depriving
        Appellants[] of their First Amendment rights and their
        right to vote.

They argue that the district court’s decision to abstain under

Burford was inappropriate because this case was not about county

land use law or zoning, for which Burford abstention might be

appropriate,       but    rather    was       about    the     County’s        legislative

procedure, which applies not only in the land use context, but

in the context of any Howard County legislative action.                                  They

argue that the federal interests in this case outweigh the state

interests    and    that    a   federal       court     would       not    “intrude      upon

‘complex state administrative processes.’”

        The defendants, too, contend that Burford abstention was

inappropriate,      but    they    do    so       because,    as    they    contend,      the

district    court      should     have    dismissed          the    case    for    lack    of

subject matter jurisdiction.              They argue that the Residents did

not have standing in that they failed to assert a particularized

harm.      In    the     alternative,         the    defendants        claim      that    the

individual      defendants      were     protected       by        qualified      immunity.

Finally,     they      argue    that     the        Residents       did    not    state     a

cognizable federal claim.




                                              6
       We   agree         with    the   defendants    that    the    Residents    lack

standing to bring this action and therefore that the action must

be dismissed for lack of subject matter jurisdiction.                            Under

federal standing jurisprudence, “when the asserted harm is a

generalized grievance shared in substantially equal measure by

all or a large class of citizens, that harm alone normally does

not warrant exercise of jurisdiction.”                    Bishop v. Bartlett, 575

F.3d    419,        423    (4th     Cir.    2009)    (internal      quotation    marks

omitted); see also id. at 424 (a party lacks standing when its

interest is “merely a claim of the right, possessed by every

citizen,       to     require       that    the     government      be   administered

according to law”) (internal quotation marks omitted).

       In this case, the Residents purport to state claims, which

are possessed by every citizen of Howard County, to require that

the County government “be administered according to law.”                        Their

grievances      are       accordingly      simply   too   generalized     to    provide

them    with        standing      to    support     federal   jurisdiction.         We

therefore vacate the district court’s Burford order and remand

with instructions to dismiss this action for lack of subject

matter jurisdiction.

                                        VACATED AND REMANDED WITH INSTRUCTIONS




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