                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-5-2007

PA Prison Society v. Kane
Precedential or Non-Precedential: Precedential

Docket No. 06-3354




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                                           PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                    __________

                  Nos. 06-3354 & 06-3370
                        __________


  PENNSYLVANIA PRISON SOCIETY; JULIA D. HALL;
   GREGORY H. KNIGHT; FIGHT FOR LIFERS, INC.;
WILLIAM GOLDSBY; JOAN PORTER; GRATERFRIENDS,
 INC; JOAN F. GAUKER; VINCENT JOHNSON; FRIENDS
COMMITTEE TO ABOLISH THE DEATH PENALTY, INC.;
KURT ROSENBERG; PENNSYLVANIA ABOLITIONISTS
   UNITED AGAINST THE DEATH PENALTY; TERRY
   RUMSEY; ROGER BUEHL; DOUGLAS HOLLIS; and
                 DIANNA HOLLIS,
                    Plaintiffs-Appellants/Cross-Appellees,

                             vs.

   PEDRO A. CORTÉS, Secretary of the Commonwealth of
Pennsylvania; HONORABLE EDWARD RENDELL, Governor,
   Commonwealth of Pennsylvania; CATHERINE BAKER
    KNOLL, Chairperson, Board of Pardons; THOMAS W.
   CORBETT, JR., Member of Board of Pardons; LOUISE
    WILLIAMS, Member of Board of Pardons; RUSSELL
           WALSH, Member of Board of Pardons,
                    Defendants-Appellees/Cross-Appellants.

                        __________

       On Appeal from the United States District Court
          For the Middle District of Pennsylvania
                     (No. 97-CV-1731)
        District Judge: Honorable A. Richard Caputo
                         __________

               Argued on September 19, 2007
                       ___________
   Before: SLOVITER, SMITH and GARTH, Circuit Judges

                (Opinion Filed: November 5, 2007)

Stephen A. Whinston (Argued)
Rebecca M. Hamburg
Berger & Montague, P.C.
1622 Locust Street
Philadelphia, PA 19103
      Attorneys for Appellants/Cross-Appellees

Amy Zapp (Argued)
Office of Attorney General
16th Floor, Strawberry Square
Harrisburg, PA 17120
       Attorneys for Appellees/Cross-Appellant

                            ___________

                             OPINION
                            __________

GARTH, Circuit Judge:

        This appeal presents an issue of our jurisdiction – standing
– that was not raised, and therefore not considered, by the District
Court. As the Supreme Court has held, “[t]he rules of standing,
whether as aspects of the Art. III case-or-controversy requirement
or as reflections of prudential considerations defining and limiting
the role of the courts, are threshold determinants of the propriety of
judicial intervention.” Warth v. Seldin, 422 U.S. 490, 517-18
(1975).

        “For that reason, every federal appellate court has a special
obligation to satisfy itself not only of its own jurisdiction, but also
that of the lower courts in a cause under review, even though the
parties are prepared to concede it. . . . And if the record discloses
that the lower court was without jurisdiction this court will notice
the defect, although the parties make no contention concerning it.”

                                  -1-
Bender v. Williamsport Area School Dist., 475 U.S. 534, 541
(1986) (internal quotation marks and citations omitted).

       The instant case arises in the context of a challenge to
amendments to the Constitution of the Commonwealth of
Pennsylvania ratified in 1997 (the “1997 Amendments”). The
Amendments changed the composition of the Pennsylvania Board
of Pardons and the voting requirements for obtaining a pardon or
commutation of sentence from a majority vote of the Board of
Pardons to a unanimous vote.

       These two changes resulting from the 1997 Amendments
gave rise to the present charges that the Amendments violate the Ex
Post Facto and Due Process clauses of the U.S. Constitution. The
District Court ruling on cross-motions for summary judgment held,
among other things, that the 1997 Amendments violated the Ex
Post Facto clause as to life-sentenced prisoners, but not as to death-
sentenced prisoners.

       We now hold that the District Court may not have had
jurisdiction to decide the merits of the complaint. Accordingly, we
will vacate the March 13, 2006 order of the District Court and
remand with directions to conduct further proceedings, as
necessary, to determine whether any of the plaintiffs has standing
and if not, to dismiss the complaint without prejudice.

                                  I.

      Among the plaintiffs named in this case are three
Pennsylvania prisoners, Roger Buehl (serving a death sentence),1



       1
         At oral argument, we were advised by the Attorney
General that prisoner Buehl had been resentenced in 1999 to
consecutive life-terms pursuant to an agreement whereby Buehl
forfeited his right to appeal and his right to further judicial
remedies. The Attorney General reserved the right to rescind
the agreement and to move to restore Buehl’s death sentence if
Buehl violated the agreement. At this writing, we have no
further knowledge of actions taken by the Attorney General.

                                 -2-
Vincent Johnson, and Douglas Hollis (serving life sentences);
several non-profit advocacy and prisoner rights groups;2 and
several voters and qualified taxpayers in Pennsylvania.3 The
defendants are Pennsylvania’s Governor, Secretary, and four
members of the Board of Pardons, including its permanent
members, Lieutenant Governor Catherine Baker Knoll and
Attorney General Thomas W. Corbett, Jr, who are named in their
official capacities as members of the Board.

       In Pennsylvania, prisoners condemned to death or serving
life imprisonment may not be released on parole except when the
Board of Pardons has recommended commutation of sentence and
the Governor approves the commutation. 61 P.S. § 331.21(a).
Prior to the 1997 Amendments, the Pennsylvania Constitution
(Article IV, Section 9)4 set forth the following provisions
authorizing pardons and commutations:

           (a) In all criminal cases except impeachment the
           Governor shall have power to remit fines and
           forfeitures, to grant reprieves, commutation of
           sentences and pardons; but no pardon shall be
           granted, nor sentence commuted, except on the
           recommendation in writing of a majority of the
           Board of Pardons, after full hearing in open
           session, upon due public notice.               The
           recommendation, with the reasons therefor at
           length, shall be delivered to the Governor and a
           copy thereof shall be kept on file in the office of


       2
        Pennsylvania Prison Society, Inc.; Fight for Lifers, Inc.;
Graterfriends, Inc.; Friends Committee to Abolish the Death
Penalty, Inc.; and Pennsylvania Abolitionists United Against the
Death Penalty.
       3
       Gregory H. Knight, William Goldsby, Joan Porter, Joan
F. Gauker, Kurt Rosenberg, Terry Rumsey, and Diana Hollis.
       4
        Like Article II of the U.S. Constitution, Article IV of
the Pennsylvania Constitution delineates powers of the
executive branch.

                                   -3-
        the Lieutenant Governor in a docket kept for that
        purpose.

        (b) The Board of Pardons shall consist of the
        Lieutenant Governor who shall be chairman, the
        Attorney General and three members appointed by
        the Governor with the consent of two-thirds or a
        majority of the members elected to the Senate as
        is specified by law for terms of six years. The
        three members appointed by the Governor shall be
        residents of Pennsylvania and shall be recognized
        leaders in their fields; one shall be a member of
        the bar, one a penologist, and the third a doctor
        of medicine, psychiatrist or psychologist. The
        board shall keep records of its actions, which shall
        at all times be open for public inspection.

Pa. Const., Art. IV, § 9 (emphasis added).

       On November 4, 1997, the provisions of the Pennsylvania
Constitution recited above were amended to provide:

        (a) In all criminal cases except impeachment the
        Governor shall have power to remit fines and
        forfeitures, to grant reprieves, commutation of
        sentences and pardons; but no pardon shall be
        granted, nor sentence commuted, except on the
        recommendation in writing of a majority of the
        Board of Pardons, and in the case of a sentence of
        death or life imprisonment, on the unanimous
        recommendation in writing of the Board of
        Pardons, after full hearing in open session, upon
        due public notice. The recommendations, with the
        reasons therefor at length, shall be delivered to the
        Governor and a copy thereof shall be kept on file
        in the office of the Lieutenant Governor in a
        docket kept for that purpose.




                                 -4-
           (b) The Board of Pardons shall consist of the
           Lieutenant Governor who shall be chairman, the
           Attorney General and three members appointed by
           the Governor with the consent of a majority of the
           members elected to the Senate for terms of six
           years. The three members appointed by the
           Governor shall be residents of Pennsylvania. One
           shall be a crime victim; one a corrections expert;
           and the third a doctor of medicine, psychiatrist or
           psychologist. The board shall keep records of its
           actions, which shall at all times be open for public
           inspection.

Pa. Const., Art. IV, § 9 (emphasis added).

       Thus, under the pre-1997 Constitution, a prisoner applying
for a commutation of sentence could obtain a recommendation
from the Board of Pardons if three of its five members voted in his
favor.5 After the 1997 Amendments, a prisoner seeking a
commutation had to receive all five votes of the Board for a
recommendation to be considered by the Governor.

       The plaintiffs urge that these Amendments violate their Due
Process rights by depriving them of “a reasonable expectation of
the availability and reasonable possibility of executive clemency”
and their rights under the Ex Post Facto clause by retroactively
decreasing the probability of obtaining a commutation or pardon.
A105-06. The complaint alleges that the 1997 changes – which (1)
substituted a crime victim for an attorney on the Board and (2)
replaced the majority rule with a unanimity requirement –
“virtually shut out” prisoners from obtaining clemency. Id.



       5
        The five-member Board of Pardons under the pre-1997
Constitution consisted of the Lieutenant Governor, Attorney
General, a penologist, medical professional, and an attorney.
The 1997 Amendments substituted a crime victim for the
attorney and a corrections officer for a penologist. The plaintiffs
claim bias by reason of the first substitution. The District Court
rejected this argument.

                                   -5-
       On March 13, 2006, the District Court ruled in favor of the
defendants as to all claims, but held that the change in voting
requirement from majority to unanimity violated the Ex Post Facto
clause for life-sentenced prisoners.

         Plaintiffs timely appeal from the District Court’s rulings (1)
limiting its Ex Post Facto holding to life-sentenced prisoners; (2)
declining to grant injunctive relief; and (3) rejecting their Due
Process claims. One defendant – Thomas Corbett, Jr., a member
of the Board of Pardons and the Attorney General of Pennsylvania
– filed a cross-appeal. In his cross-appeal, Corbett argues, for the
first time during this litigation, that the plaintiffs have no standing
under Article III of the U.S. Constitution to bring this action.6

        We have appellate jurisdiction to review the District Court’s
final order. 28 U.S.C. § 1291. Our review is plenary.

                                  II.

        The Supreme Court has held that the “irreducible
constitutional minimum” of standing under Article III requires a
plaintiff to establish three elements: an injury in fact, i.e., an
invasion of a legally protected interest which is actual or imminent,
and concrete and particularized, as contrasted with a conjectural or



       6
         Corbett alternatively argues on the merits, that the
District Court erred in failing to dismiss or, alternatively, grant
summary judgment to defendants on the Ex Post Facto claim.
Plaintiffs respond that Corbett, as the only one of the five-
member Board of Pardons who seeks to cross-appeal, lacks
standing, see Bender v.Williamsport Area Sch. Dist., 475 U.S.
534 (1986); Karcher v. May, 484 U.S. 72 (1987),
notwithstanding Corbett’s counter-argument that he has standing
in his capacity as Attorney General, the official charged with
defending the constitutionality of the laws of Pennsylvania, see
71 P.S. § 732-204 (“It shall be the duty of the Attorney General
to uphold and defend the constitutionality of all statutes . . .”).
By reason of our holding that the plaintiffs lack standing, we do
not reach these arguments as they are moot.

                                  -6-
hypothetical injury; a causal connection between the injury and the
conduct complained of; and substantial likelihood of remedy –
rather than mere speculation – that the requested relief will remedy
the alleged injury in fact. See, e.g., Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992).

       Justice Stevens in Bender 7 aptly summarized the elements
of standing and emphasized that our obligation to notice defects in
subject matter jurisdiction assumes special importance when, as
here, constitutional questions are presented:

           In such cases we have strictly adhered to the
           standing requirements to ensure that our
           deliberations will have the benefit of adversary
           presentation and a full development of the
           relevant facts. . . .

           At an irreducible minimum, Art. III requires the
           party who invokes the court's authority to show
           that he personally has suffered some actual or
           threatened injury as a result of the putatively
           illegal conduct of the defendant, . . . and that the
           injury fairly can be traced to the challenged action
           and is likely to be redressed by a favorable
           decision. . . .

           The requirement of actual injury redressable by
           the court, . . . serves several of the implicit
           policies embodied in Article III. . . . It tends to
           assure that the legal questions presented to the
           court will be resolved, not in the rarified
           atmosphere of a debating society, but in a
           concrete factual context conducive to a realistic
           appreciation of the consequences of judicial



       7
           In Bender v. Williamsport Area School Dist., the Court
held that one member of the school board had no standing to
appeal an Establishment question in a school prayer context
when the school board itself did not appeal.

                                   -7-
         action. The ‘standing’ requirement serves other
         purposes. Because it assures an actual factual
         setting in which the litigant asserts a claim of
         injury in fact, a court may decide the case with
         some confidence that its decision will not pave
         the way for lawsuits which have some, but not all,
         of the facts of the case actually decided by the
         court.

475 U.S. at 542-43 (internal quotation marks and citations
omitted).

        Since these are not mere pleading requirements but rather an
indispensable part of the plaintiff's case, each of these elements
must be supported in the same way as any other matter on which
the plaintiff bears the burden of proof, i.e., with the manner and
degree of evidence required at the successive stages of the
litigation. See Lujan v. National Wildlife Federation, 497 U.S.
871, 883-889 (1990). A “federal court is powerless to create its
own jurisdiction by embellishing otherwise deficient allegations of
standing.” Whitmore v. Arkansas, 495 U.S. 149, 155 (1990).
Moreover, each element must be supported in the same way as any
other matter on which the plaintiff bears the burden of proof, i.e.,
with the manner and degree of evidence required at the successive
stages of the litigation. See National Wildlife Federation, 497 U.S.
at 883-89. While generalized allegations of injury may suffice at
the pleading stage, a plaintiff can no longer rest on such “mere
allegations” in response to a summary judgment motion, but must
set forth “specific facts” by affidavit or other evidence. Defenders
of Wildlife, 504 U.S. at 561; see also Fed. R. Civ. P. 56(e). As the
Supreme Court concluded, “because it is not sufficient that
jurisdiction may be inferred argumentatively from averments in the
pleadings . . . it follows that the necessary factual predicate may not
be gleaned from the briefs and arguments themselves.” Bender, 475
U.S. at 547 (internal quotation marks and citations omitted).

       The case-or-controversy requirement under Article III
ensures that “the Federal Judiciary respects the proper – and
properly limited – role of the courts in a democratic society.”
DaimlerChrysler Corp. v. Cuno, __ U.S. __, 126 S.Ct. 1854, 1860

                                  -8-
(2006) (ROBERTS, C.J.) (internal quotation marks and citation
omitted). Thus, the Court has stressed that “‘[n]o principle is more
fundamental to the judiciary’s proper role in our system of
government than the constitutional limitation of federal-court
jurisdiction to actual cases or controversies.’” Raines v. Byrd, 521
U.S. 811, 818 (1997) (quoting Simon v. Eastern Ky. Welfare
Rights Organization, 426 U.S. 26, 37 (1976)).

       The standing doctrine serves “to identify those disputes
which are appropriately resolved through the judicial process.”
Defenders of Wildlife, 504 U.S. at 560 (quoting Whitmore, 495
U.S. at 155). “[F]ederal courts sit solely, to decide on the rights of
individuals and must refrain from passing upon the
constitutionality of an act unless obliged to do so in the proper
performance of our judicial function, when the question is raised
by a party whose interests entitle him to raise it.” Hein v. Freedom
From Religion Foundation, Inc., 127 S.Ct. 2553, 2562 (2007)
(ALITO, J.) (internal quotations marks and citations omitted and
emphasis added).

                                 III.

        Applying the tri-partite test for standing – injury, causation,
and likelihood of relief, see Bender, 475 U.S. at 542 and Lyons,
infra – we turn to the “standing” of the various plaintiffs in this
action.

                                A.
                     Organizational plaintiffs8

        As recited, the doctrine of standing requires “that the party
seeking review be himself among the injured.” Sierra Club v.
Morton, 405 U.S. 727, 735 (1972). This rule applies with special
force to organizations, which are unable to establish standing solely
on the basis of institutional interest in a legal issue. Id., at 739
(“[A] mere ‘interest in a problem,’ no matter how longstanding the
interest and no matter how qualified the organization is in



       8
           See supra note 2 for the names.

                                  -9-
evaluating the problem, is not sufficient by itself.”).9

        Subsequent cases have clarified that an organization or
association may have standing to bring suit under two
circumstances. First, an organization may be granted “standing in
its own right to seek judicial relief from injury to itself and to
vindicate whatever rights and immunities the [organization or]
association itself may enjoy.” Warth v. Seldin, 422 U.S. 490, 511
(1975) (emphasis added); see also Havens Realty Corp. v.
Coleman, 455 U.S. 363, 372-79 (1982) (holding that a non-profit
organization had standing to bring an action in its own right where
it alleged that “petitioners’ [racial] steering practices have
perceptibly impaired [its] ability to provide counseling and referral
services for low- and moderate-income home-seekers . . . with the
consequent drain on the organization's resources ”); Addiction
Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399, 406-07 (3d
Cir. 2005) (upholding organizational standing where “the
corporation itself suffered injuries based on the Township’s alleged
violations of its own rights”). Alternatively, an association may
assert claims on behalf of its members, but only where the record
shows that the organization’s individual members themselves have
standing to bring those claims. See Hunt v. Washington State



       9
          For instance, in Sierra Club v. Morton, the well-known
environmental group sought to prevent the construction of a ski
resort in Mineral King Valley, California and a highway through
the adjacent Sequoia National Park. The Court found that the
Sierra Club had no standing because it had “failed to allege that
it or its members would be affected in any of their activities or
pastimes by the . . . development.” 405 U.S. at 735. Although
Sierra Club’s “complaint alleged that the development would
destroy or otherwise adversely affect the scenery, natural and
historic objects and wildlife of the park and would impair the
enjoyment of the park for future generations,” the Court found
that “[n]owhere in the pleadings or affidavits did the Club state
that its members use Mineral King [Valley or Sequoia National
Park] for any purpose, much less that they use it in any way that
would be significantly affected by the proposed actions of the
respondents.” Id. at 734-35.

                                -10-
Apple Advertising Comm'n, 432 U.S. 333, 343 (1977);10 NAACP
v. Button, 371 U. S. 415, 428 (1963); Public Interest Research
Group v. Powell Duffryn Terminals, 913 F.2d 64, 70 (3d Cir.
1990).

       The record of this case reveals that neither of these
exceptions applies to the organizational plaintiffs here. There is no
evidence in the record that these organizations as entities suffered
any harm from the 1997 Amendments. Nor are there any
allegations to that effect in the unverified complaint.

        Moreover, with regard to standing in a representational
capacity, the record is silent about the organizational plaintiffs’
members and whether those members themselves meet the standing
requirements to bring this case. The complaint contains only a bare
and inadequate statement that plaintiff Pennsylvania Prison Society
“brings this action in its own right and on behalf of its members,
including prisoners and adult individuals interested in its above
mentioned purposes.” A92. Similarly, although the complaint
alleges that plaintiff Graterfriends’ “membership totals
approximately 3,300 individuals, many of whom are life sentenced
prisoners,” there are no specific facts in the record regarding
Graterfriends’ individual members and whether any of them meets
the standing requirements to pursue the present claims. Neither has
Graterfriends itself carried its burden of establishing its own
standing by record evidence. See also, Hunt, 432 U.S. at 343; Int’l
Bhd. of Teamsters [IBT] v. Transp. Sec. Admin., 429 F.3d 1130,
1135 (D.C. Cir. 2005) (“IBT fails the first prong of [the Hunt] test
because it has identified no record evidence whatsoever
establishing the flight engineer's disqualification or even his
membership in IBT.”); National Treasury Employees Union



       10
          In Hunt v. Washington State Apple Advertising
Comm'n, the Court set out three requirements for so called
“representational standing”: (1) the organization’s members
must have standing to sue on their own; (2) the interests the
organization seeks to protect are germane to its purpose, and (3)
neither the claim asserted nor the relief requested requires
individual participation by its members. 432 U.S. at 343.

                                -11-
[NTEU] v. United States Dep't of the Treasury, 25 F.3d 237, 242
(5th Cir. 1994) (finding no standing because “the plaintiffs do not
allege that any represented member of the NTEU has actually
suffered any such injury as a result of the ‘suitability’
questionnaire”).

       The standing of the remaining organizational plaintiffs –
Fight for Lifers, Friends Committee to Abolish the Death Penalty
and Pennsylvania Abolitionists United Against the Death Penalty
– suffers from the same defects.

                                B.
                     Voter/taxpayer plaintiffs 11

         The complaint names seven plaintiffs who are “adult,
competent individuals residing in Pennsylvania, and are qualified
voters and taxpayers in Pennsylvania.” A94. There is no evidence
that these individuals have an interest in anything more than mere
generalized grievances of concerned citizens. See e.g., Defenders
of Wildlife, 504 U.S. at 573-74 (“[A] plaintiff raising only a
generally available grievance about government-claiming only
harm to his and every citizen's interest in proper application of the
Constitution and laws, and seeking relief that no more directly and
tangibly benefits him than it does the public at large-does not state
an Article III case or controversy”); DaimlerChrysler Corp., __
U.S. __, 126 S.Ct. at 1862 (“Standing has been rejected” where
“the alleged injury is not concrete and particularized, . . . but
instead a grievance the taxpayer suffers in some indefinite way in
common with people generally.”) (internal quotation marks and
citation omitted); ASARCO Inc. v. Kadish, 490 U.S. 605, 616
(1989) (“[G]eneralized grievances brought by concerned citizens
. . . are not cognizable in the federal courts”).

       Significantly, the plaintiffs do not even argue that the
organizational or voter/taxpayer plaintiffs have standing. We
therefore hold that the voter/taxpayer plaintiffs, just as the
organizational plaintiffs, do not satisfy the constitutional



       11
            See supra note 3 for the names.

                                 -12-
imperative for standing.

                              C.
                       Prisoner plaintiffs

        Having concluded that the organizational and voter/taxpayer
plaintiffs may not maintain this action, we next look to the last
category of plaintiffs – the prisoner plaintiffs – who seek our
decision on the constitutional claims asserted. With respect to the
three prisoner plaintiffs, the complaint contains the following
allegations:

        10. Plaintiff, Roger Buehl, AM-7936, was, at the
        time this case was filed, a death-sentenced
        prisoner convicted and sentenced prior to
        November 4, 1997. He was among approximately
        two hundred twenty (220) death sentenced
        individuals in Pennsylvania who may seek relief
        through the Pardons Board.

        11. Plaintiff Vincent Johnson, AF-3422, SCI-
        Camp Hill, is a life-sentenced prisoner who was
        convicted on August 7, 1993, of aggravated
        robbery and murder in the first degree for a
        murder committed on or about November 5, 1971.
        He has filed application[s] with the Board of
        Pardons on the following dates: April 2, 1991;
        April 27, 1992; October 24, 1994; and May 23,
        1997. His latest application was denied in 1998
        by a 2-3 vote.

        12. Plaintiff Douglas Hollis, AF-6355, is a life-
        sentenced prisoner currently incarcerated at SCI-
        Coal Township. Prior to the 1997 Amendments,
        he filed an application to the Board of Pardons
        and received approval of his commutation by a 4-
        1 vote of the Board, but was rejected by Governor
        Robert Casey. He subsequently filed another
        application to the Pardons Board, which was
        denied.

                               -13-
A94.

       Crucially, the record contains no evidence that any of these
prisoner plaintiffs have received or may expect to receive a
majority vote (i.e., 3-2 or 4-1) of the Board of Pardons after the
1997 Amendments. Such allegations (on a motion to dismiss) or
a showing by affidavit or other evidence (on a motion for summary
judgment) of a 3-2 or 4-1 vote of the Board could demonstrate that
a plaintiff was injured by the 1997 Amendments.12

      The complaint does not allege and the record contains no
evidence that any of these prisoner plaintiffs has had any actual



       12
          The complaint recites that there are three life-sentenced
prisoners, not parties to this case, who were convicted before
1997 and received majority (but not unanimous) votes by the
Board of Pardons after the 1997 Amendments, resulting in a
rejection of their applications. Pl. Br. at 18, n. 11. These facts,
if established in the record, alleviate the prudential concern that
this “opinion of the court [may be read to] provid[e] that all
courthouse doors are shut” for potentially-valid claims. Jaffee
v. U.S., 663 F.2d 1226, 1266 (3d Cir. 1981) (en banc)
(GIBBONS, J. and SLOVITER, J., dissenting). A concern such
as this one has led us to provide that the dismissal of this appeal
be without prejudice.

       Subsequent to oral argument, counsel for the plaintiffs
sought to expand the record by including information that a
prisoner by the name of Jackie Lee Thompson convicted prior to
1997 had received a 4-1 vote by the Board of Pardons, but had
not had her sentence commuted. Although this information had
not been a matter of record before the District Court and we are
informed by the appellees that the correspondence reflecting this
vote is not even reflected on the docket, we nevertheless granted
the motion recognizing that it could not affect the standing
decision that we have reached because Ms. Thompson was not a
party to the present action. We therefore deny reconsideration
of our order of October 3, 2007, which granted appellants’
motion to supplement the record.

                               -14-
injury or presently has an application pending before the Board of
Pardons. Nor does the complaint allege or the record evidence
show that any of the prisoner plaintiffs has immediate plans to file
such an application. Nor is there any record evidence to suggest
that these specific prisoner plaintiffs, even should they apply, are
likely to have received a recommendation for commutation under
the pre-1997 regime, for ultimate decision by the Governor. The
only allegation concerning these prisoner plaintiffs’ commutation
prospects is the very general prediction that “[s]aid plaintiffs will,
in the future, apply for executive clemency through the Board.”
A101.

       Prisoner plaintiffs have failed for two reasons to
demonstrate that they have suffered an “injury in fact” – the first of
the “irreducible” triad of Article III standing requirements. To
constitute injury in fact, harm to the plaintiff must be an invasion
of a legally protected interest that is “distinct and palpable, as
opposed to merely abstract and . . . actual or imminent, not
conjectural or hypothetical.” Whitmore v. Arkansas, 495 U.S. 149,
155 (1990) (internal quotation marks and citations omitted and
emphasis added). Here, prisoner plaintiffs have not demonstrated
(1) “actual or imminent” harm because they failed to allege or
adduce evidence of any concrete plans to apply for a commutation
in the immediate future; nor (2) “distinct and palpable” injury
because they have not shown that, even if they do apply to the
Board of Pardons, they are sufficiently likely to be personally
harmed by the changed voting requirement in the 1997
Amendments – i.e., that they are likely to receive a majority of
votes favoring a commutation recommendation from the Board.

        In Defenders of Wildlife, the Court considered a challenge
to a revision of a federal regulation providing that the Endangered
Species Act does not apply to United States government activities
overseas. Two plaintiffs had submitted detailed affidavits
describing their viewing of endangered animals on past trips
abroad, and stated their “inten[tion] to return . . . in the future.” Id.
at 563. The Court held that such indefinite future plans were
insufficient to establish injury in fact:

         [T]he affiants’ profession of an “intent” to return

                                  -15-
         to the places they had visited before – where they
         will presumably, this time, be deprived of the
         opportunity to observe animals of the endangered
         species – is simply not enough. Such “some day”
         intentions -- without any description of concrete
         plans, or indeed even any specification of when
         the some day will be -- do not support a finding of
         the "actual or imminent" injury that our cases
         require.

Id. at 564 (emphasis added).

        The Court took issue with the dissent’s view that it would
be sufficient for the plaintiffs to show that they would “soon return
to the project sites,” id., on the grounds that it would eviscerate the
imminence requirement:

         Although “imminence” is concededly a somewhat
         elastic concept, it cannot be stretched beyond its
         purpose, which is to ensure that the alleged injury
         is not too speculative for Article III purposes --
         that the injury is “certainly impending.” It has
         been stretched beyond the breaking point when .
         . . the plaintiff alleges only an injury at some
         indefinite future time, and the acts necessary to
         make the injury happen are at least partly within
         the plaintiff's own control. In such circumstances
         we have insisted that the injury proceed with a
         high degree of immediacy, so as to reduce the
         possibility of deciding a case in which no injury
         would have occurred at all.

Id. at 564 n.2 (internal citations omitted and emphasis added).

        Here, as in Defenders of Wildlife, prisoner plaintiffs offer
only the most vague non-concrete “some day” intentions that they
“will, in the future, apply for executive clemency.” A101. Such
allegations of injury at some indefinite future time – where the acts
necessary to make the injury happen are within the prisoner
plaintiffs’ own control – lack the high degree of immediacy

                                 -16-
required to constitute injury in fact and provide Article III standing.
Id. at 564 n.2.

        Even if prisoner plaintiffs had alleged and sufficiently
introduced evidence that they had imminent plans to file an
application for a commutation, they would still fail to demonstrate
injury in fact because they have not shown a sufficient likelihood
that they personally would be harmed by the change in voting
requirements wrought by the 1997 Amendments. The relevant
precedent is the seminal Supreme Court case of City of Los
Angeles v. Lyons, 461 U.S. 95 (1983).

        Lyons involved a suit to enjoin as unconstitutional a policy
of the Los Angeles Police Department permitting the use of
chokeholds in instances where the police were not threatened with
death or serious bodily injury. Though Lyons could seek damages
for his injuries as a result of the alleged policy, the Court held that
he had no standing to seek injunctive relief because he could not
demonstrate a sufficient likelihood that he, personally, would be
choked again in the future: “Lyons' standing to seek the injunction
requested depended on whether he was likely to suffer future injury
from the use of the chokeholds by police officers. Id. at 105. The
Court elaborated that:

         Absent a sufficient likelihood that he will again
         be wronged in a similar way, Lyons is no more
         entitled to an injunction than any other citizen of
         Los Angeles; and a federal court may not
         entertain a claim by any or all citizens who no
         more than assert that certain practices of law
         enforcement officers are unconstitutional.

Id. at 111; see also Defenders of Wildlife, 504 U.S. at 564
(expressly applying Lyons to uphold dismissal of a complaint on
the basis of “plaintiff's failure to show that he will soon expose
himself to the injury”).

      In addition to their failure to allege any plan to apply for a
commutation in the near future, prisoner plaintiffs have offered no
evidence that they personally are likely to be injured by the 1997

                                 -17-
Amendments. The record is bare of any information about prisoner
plaintiffs’ backgrounds, and thus whether they would be good, i.e.,
likely, candidates for commutation.13 Prisoner plaintiffs would
only be injured by the 1997 Amendments if they received a
majority (but less than unanimous vote) by the Board in favor of
commutation. Less than a majority would have been insufficient
even under the pre-1997 regime. Thus, to show a likelihood of
injury, prisoner plaintiffs must offer facts showing that they likely
would have received a majority vote in favor of recommendation.
But they have not offered any evidence in this regard.

       None of the prisoner plaintiffs can establish a “concrete and
particularized” injury without having obtained at least three votes
in the Board – which would have been sufficient for its
recommendation of commutation of sentence before the 1997
Amendments but are insufficient under the current provisions. See
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 210 (1995)
(quoting Defenders of Wildlife, 504 U.S. at 560).

        The Adarand Court found standing for a subcontractor
challenging the constitutionality of a federal program because the
subcontractor had actually been denied a contract under the
challenged rules and had shown during discovery that it was very
likely to bid in the relatively near future on another contract under
the same provisions. 515 U.S. at 210, 212. Given that it was
denied a contract, the subcontractor unquestionably had standing
to seek damages. Id. at 210. Moreover, it had standing to seek
forward-looking declaratory and injunctive relief against any future
use of the challenged rules because its alleged injury was concrete
and particularized – “discriminatory classification prevent[ing] the
plaintiff from competing on an equal footing,” id. at 211 (emphasis
added)14 – and imminent – its general management testified in


       13
         Indeed, plaintiffs state in their brief that “[a]lthough
prisoners were named as plaintiffs, their individual
circumstances were never at issue in the case.” Pl. Br. at 19.
       14
         The racially discriminatory aspect of the challenged
bidding rules was sufficient to establish concrete and
particularized injury, since the Supreme Court has long-held

                                -18-
deposition that the company has bid on every government project,
which were open for bidding at least once a year. Id. at 211-12.
Thus, the Court concluded, “[b]ecause the evidence in this case
indicates that the [government] is likely to let contracts . . . that
contain [the challenged] compensation clause at least once per year
in Colorado, that [the subcontractor] is very likely to bid on each
such contract, and that [it] often must compete for such contracts
against small disadvantaged businesses, we are satisfied that [it]
has standing to bring this lawsuit.” Id. at 212.

        In contrast to Adarand, the prisoner plaintiffs here have not
established any concrete and particularized injury, since they did
not and would not have obtained a recommendation of the Board
of Pardons even under the pre-1997 Amendments majority voting
requirement. Additionally, the prisoner plaintiffs cannot claim any
form of stigma associated with applying under the amended
Pennsylvania Constitution. In short, they have not shown any
injury.

       Plaintiffs argue that standing requirements should be relaxed
here because they bring a facial challenge to the constitutionality
of the 1997 Amendments. The record does contain evidence,
offered by the parties on the merits of the Ex Post Facto claim,
showing that the absolute number of Board of Pardon
recommendations for commutations has decreased since 1997
when the unanimity requirement took effect. However, this
decrease had begun already in 1995, long before the amendments




since Brown v. Board of Education, 347 U.S. 483 (1954), that
the stigma associated with racial classification is prima facie
injury. See, e.g., Richmond v. J.A. Croson Co., 488 U.S. 469,
516-517 (1989) ((STEVENS, J., concurring in part and
concurring in judgment) (“Although [the legislation at issue]
stigmatizes the disadvantaged class with the unproven charge of
past racial discrimination, it actually imposes a greater stigma on
its supposed beneficiaries”)) (quoted in Adarand Constructors,
Inc. v. Pena , 515 U.S. at 229).

                                -19-
went into effect.15 Thus, this evidence fails the causation element
of standing. Defenders of Wildlife, 504 U.S. at 560. Moreover,
even if the statistical evidence actually showed a decreased
probability of receiving a recommendation caused by the 1997
Amendments – an inference disputed by defendants – the prisoner
plaintiffs would lack standing because they must show that
particularized injury that applies to them personally. As the
Supreme Court noted in Lyons:

        Of course, it may be that among the countless
        encounters between the police and the citizens of
        a great city such as Los Angeles, there will be
        certain instances in which strangleholds will be
        illegally applied and injury and death
        unconstitutionally inflicted on the victim. . . .
        [But] it is surely no more than speculation to
        assert either that Lyons himself will again be
        involved in one of those unfortunate instances, or
        that he will be arrested in the future and provoke
        the use of a chokehold by resisting arrest,
        attempting to escape, or threatening deadly force
        or serious bodily injury.

Lyons, 461 U.S. at 108.

       None of the cases cited by plaintiffs support a general
proposition that facial challenges to the validity of a statute need
not satisfy the Article III requirements for standing. The cited



       15
       The following are the number commutation
recommendations granted in Pennsylvania from 1989 to 2005.

       1989: 19             1996: 1               2002: 1
       1990: 10             1997: 0               2003: 1
       1991: 20             1998: 0               2004: 1
       1992: 22             1999: 0               2005: 0
       1993: 16             2000: 0
       1994: 10             2001: 0
       1995: 3              2002: 1

                                -20-
cases arise in the highly exceptional First Amendment context. See
Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 756 (U.S. 1988)
(“In the area of freedom of expression it is well established that one
has standing to challenge a statute on the ground that it delegates
overly broad licensing discretion . . .”) (citing Freedman v.
Maryland, 380 U.S. 51, 56 (1965)) (emphasis added); Steffel v.
Thompson, 415 U.S. 452 (1974) (upholding facial First
Amendment challenge to criminal trespass statute prohibiting
distribution of political handbills); Peachlum v. City of York, 333
F.3d 429, 435 (3d Cir. 2003) (“A First Amendment claim,
particularly a facial challenge, is subject to a relaxed ripeness
standard. . . . The courts have repeatedly shown solicitude for First
Amendment claims because of concern that, even in the absence of
a fully concrete dispute, unconstitutional statutes or ordinances
tend to chill protected expression among those who forbear
speaking because of the law’s very existence.”) (internal citations
omitted and emphasis added); Presbytery of the Orthodox
Presbyterian Church v. Florio, 40 F.3d 1454, 1458 (3d Cir. 1994)
(finding ripe plaintiffs’ First Amendment challenge to state law
prohibiting discrimination on the basis of sexual orientation). The
relaxed standing requirement in these cases apply solely in the First
Amendment context, and therefore has no application to the
commutation procedures here at issue.

        One of the least compelling arguments the prisoner plaintiffs
assert is that – despite the absence of a pending or soon to be filed
commutation application, or the likelihood that any plaintiff’s
application would be denied as a result of the 1997 Amendments
– they have sustained a cognizable injury under Article III because
they are thereby discouraged from even attempting to apply for a
commutation. See Howard v. New Jersey Dep't of Civil Service,
667 F.2d 1099, 1103 (3d Cir. 1981) (“Threatened injury can
constitute injury-in-fact where the threat is so great that it
discourages the threatened party from even attempting to exercise
his or her rights.”) (citing International Brotherhood of Teamsters
v. United States, 431 U.S. 324, 365-66 (1977)). Similarly,
plaintiffs argue that “the passage of the Amendments has
effectively put out a ‘Do Not Apply’ message to death and life
sentenced inmates.” Pl. Br. at 11. This argument is without merit,



                                -21-
since plaintiff Johnson and other prisoners not parties to this case 16
have applied for commutations after the 1997 Amendments went
into effect and would have standing upon obtaining three votes in
their favor. Moreover, certain prisoners, such as plaintiff Buehl,
may prefer to seek relief from their sentences under other options
provided by the legal system, such as motions for resentencing or
writs of habeas corpus.

                                 IV.

       Because the issue of standing was raised for the first time on
appeal, none of the plaintiffs have had the opportunity to present
evidence or to litigate this issue. We will therefore dismiss this
appeal without prejudice for lack of jurisdiction and remand to the
District Court for further proceedings consistent with this Opinion
to develop the record in order to determine plaintiffs’ standing to
bring this action.




       16
            See supra note 12.

                                 -22-
