89 F.3d 39 | 2d Cir. | 1995
Lead Opinion
Plaintift-Counter-Defendant-Appellee Michael A. Lebrón petitions for rehearing of this Court’s decision in Lebron v. National Railroad Passenger Corp. (Amtrak), 69 F.3d 650 (2d Cir.1995) (“Lebrón /”), familiarity with which is assumed. We deny the petition for rehearing, but amend Lebrón I as follows:
1. The sentence at 658, second column, line eighteen, is deleted.
2. The sentence at 659, first column, line three, is amended to read as follows:
Because Lebrón insisted that TDI display his proposed advertisement only on the Spectacular, his attempt to attack Amtrak’s policies regarding the acceptance of advertisements in Penn Station generally, rather than on the Spectacular, amounts, in substance, to a facial challenge to those policies as they might be applied to advertisements .other than Lebron’s and to locations not at issue.
3. The two sentences at 660, first column, lines 35-40, are replaced by the following:
We reverse the judgment of the district court and remand for consideration of Le-bron’s contract claim and TDI’s counterclaim for a declaratory judgment that it is entitled to terminate the Lease. Because initial subject matter jurisdiction over Le-bron’s federal claim is now clear, and a full trial has been “conducted on an expedited basis, upon written submissions,” Lebrón I, 811 F.Supp. [993] at 994, the interests of judicial economy and fairness to the parties counsel that this litigation be completed in federal court.
We note the assertion in Chief Judge Newman’s dissent from this disposition of the petition for rehearing that we now approve an inconsistent Amtrak policy because, “as the District Court found, advertisements fall
We rely upon Lebrón I with respect to our analysis of the forum issue. See id., at 655-58.
Dissenting Opinion
dissenting:
I respectfully dissent from the denial of the petition for rehearing.
When the Court first issued its opinion on the merits of Lebron’s First Amendment challenge, it premised substantial portions of its ruling on the view that Amtrak’s advertising policy on political messages, whatever the policy’s content, was limited in geographic scope to the one large billboard in Penn Station known as “the Spectacular.” Le-bron’s petition for rehearing challenges that premise, pointing out unrefuted contrary evidence in the record, a contrary assumption, if not a finding, underlying the District Court’s analysis, and the acknowledgement by Amtrak in its appellate brief that its policy “applies to all advertising in Amtrak’s facilities.” Brief for Appellant at 7. The Court responds to Lebron’s petition by amending its opinion to delete the two passages of the opinion as originally issued that had asserted that Amtrak’s policy against political advertisements is limited to the Spectacular.
Though the deletions are fully justified, they leave the Court’s legal analysis of Le-bron’s First Amendment challenge even more vulnerable than I thought it was at the time of the original opinion. See Lebron I, 69 F.3d 650, 660 (Newman, C.J., dissenting). For example, the original opinion had concluded that there is no evidence that Amtrak’s policy has ever been applied inconsistently “because the policy against political advertising was limited in scope to the Spectacular.” Id. at 658. The revised recognition that Amtrak’s policy, whatever its content, is not limited in scope to the Spectacular leaves unsupported the majority’s view that the policy has not been applied inconsistently. In fact, as the District Court found, advertisements falling within a broad category of political messages 'had been displayed in Penn Station.
Perhaps the majority now means to rest its ultimate conclusion solely on its view that the
I agree with the majority that the state law issues are properly returned to the District Court for further consideration, but I would grant the petition for rehearing.
. The majority again notes, as it did in the initial opinion on the merits, that my dissent from the very first Lebrón ruling had observed that Penn Station "has not become a forum for ads of such pointed political content as Lebron’s [proposed ad for the Spectacular.]" 12 F.3d at 394 (emphasis added). The fact that the ads Amtrak previously allowed in Penn Station were only of a general political nature and did not contain political content as "pointed” as Lebron's ad does not detract in any way from the District Court's finding, supported by abundant evidence, that the Amtrak policy has been inconsistently applied. Whether the difference between Le-bron's ad and prior ads should have a bearing’on the scope of relief, which is the issue I discussed in the prior dissent, is an issue entirely different from whether Amtrak has incurred liability for applying its "policy” inconsistently in violation of the First Amendment.