Pedro Lozano v. City of Hazleton

Filing 920100909

Opinion

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 07-3531 _____________ PEDRO LOZANO; HUMBERTO HERNANDEZ; ROSA LECHUGA; JOHN DOE 1; JOHN DOE 2; JOHN DOE 3, a Minor, by His parents; JANE DOE 1; JANE DOE 2; JANE DOE 3; JOHN DOE 4, a Minor by His parents, BRENDA LEE MIELES; CASA DOMINICANA OF HAZLETON, INC.; HAZLETON HISPANIC BUSINESS ASSOCIATION; PENNSYLVANIA STATEWIDE LATINO COALITION; JANE DOE 5; JOHN DOE 7; JOSE LUIS LECHUGA v. CITY OF HAZLETON, Appellant Appeal from the United States District Court for the Middle District of Pennsylvania (No. 3:06-cv-01586) District Judge: Honorable James M. Munley Argued October 30, 2008

B e f o re : McKEE, Chief Judge, and NYGAARD and SILER,* C ir c u it Judges (O p in io n filed September 9, 2010) W ito ld J. Walczak, Esq. (ARGUED) A m e ric a n Civil Liberties Union of Pennsylvania 313 Atwood Street P itts b u rg h , PA 15213 O m a r Jadwat, Esq. (ARGUED) L e e P. Gelernt, Esq. A m e ric a n Civil Liberties Union Immigrant Rights' Project 125 Broad Street 18 th Floor N e w York, NY 10004-2400 J e n n if e r Chang, Esq. L u c a s Guttentag, Esq. A m e ric a n Civil Liberties Union Foundation 3 9 Drumm Street S a n Francisco, CA 94111 J a c k so n Chin, Esq. F o s te r Maer, Esq.

Honorable Eugene E. Siler, Jr., Senior Judge of the United States Court of Appeals for the Sixth Circuit, sitting by designation. 2

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G h ita Schwarz, Esq. P u e rto Rican Legal Defense & Education Fund 9 9 Hudson Street 1 4 th Floor N e w York, NY 10013 T h o m a s B. Fiddler, Esq. W h i te & Williams 1650 Market Street O n e Liberty Place, Suite 1800 P h ila d e lp h ia , PA 19103 E le n a Park, Esq. C o z e n & O'Connor 2 0 0 Four Falls Corporate Center P .O . Box 800, Suite 400 W e st Conshohocken, PA 19428-0800 Ila n Rosenberg, Esq. T h o m a s G. Wilkinson, Jr., Esq. C o z e n & O'Connor 1 9 0 0 Market Street 3 r d Floor P h ila d e lp h ia , PA 19103 S h a m a in e A. Daniels, Esq. C o m m u n ity Justice Project 1 1 8 Locust Street H a rris b u rg , PA 17101 C o u n s e l for Plaintiffs-Appellees 3

K ris W. Kobach, Esq. (ARGUED) P r o f e ss o r of Law U n iv e rs ity of Missouri (Kansas City) 5 1 0 0 Rockhill Road K a n sa s City, MO 64110-2499 H a rry G. Mahoney, Esq. C a rla P. Maresca, Esq. A n d re w B. Adair, Esq. D e a se y Mahoney, Valentini & North 1 6 0 1 Market Street S u ite 3400 P h ila d e lp h ia , PA 19103-2978 E liz a b eth S. Gallaway, Esq. M o u n ta in States Legal Foundation 2 5 9 6 South Lewis Way L a k e w o o d , CO 80227 M ic h a el M. Hethmon, Esq. Im m ig ra tio n Reform Law Institute 2 5 Massachusetts Avenue, N.W. Suite 330 B W a sh in g to n , DC 20001 Counsel for Defendant-Appellant Damon Scott 1446 Fair Oaks Lane Florence, SC 29506-5733

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Paul J. Orfanedes, Esq. James F. Peterson, Esq. Judicial Watch, Inc. 501 School Street, S.W. Washington, DC 20024 Richard A. Samp, Esq. Washington Legal Foundation 2009 Massachusetts Avenue, N.W. Washington, DC 20036 Andrew L. Schlafly, Esq. 17th Floor 521 Fifth Avenue New York, NY 10175 Counsel for Amicus Appellants Robin S. Conrad, Esq. National Chambers Litigation Center 1615 H Street, N.W. Washington, DC 20062 Carter G. Phillips, Esq. Eric A. Shumsky, Esq. Sidley Austin 1501 K Street, N.W. Washington, DC 20005 Burt M. Rublin, Esq. Ballard Spahr 1735 Market Street 51st Floor Philadelphia, PA 19103 5

Diana S. Andsager, Esq. Mayer Brown 71 South Wacker Drive Chicago, Il 60603 Nancy Winkelman, Esq. Schnader Harrison Segal & Lewis 1600 Market Street Suite 3600 Philadelphia, PA 19103 Kenneth J. Pfaehler, Esq. Sonnenschein, Nath & Rosenthal 1301 K Street, N.W. Suite 600 East Tower Washington, DC 20005 Charles D. Weisselberg, Esq. Berkley Law School 688 Simon Hall Berkley, CA 94720 Jacob S. Pultman, Esq. Allen & Overy 1221 Avenue of the Americas New York, NY 10020 John W. West, Esq. Bredhoff & Kaiser 805 Fifteenth Street, N.W. Suite 1000 Washington, DC 20005

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Mark D. McPherson, Esq. Morrison & Foerster 1290 Avenue of the Americas New York, NY 10104 Counsel for Amicus Appellees

OPINION McKEE, Chief Judge. TABLE OF CONTENTS I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 II. FACTUAL AND PROCEDURAL BACKGROUND. . . . . . . 10 A. Hazleton and its Ordinances. . . . . . . . . . . . . . . . . . . . 10 1. The Illegal Immigration Relief Act Ordinance. 14 2. The Rental Registration Ordinance.. . . . . . . . . 21 B. The Plaintiffs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 C. Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 III. JURISDICTION AND STANDARD OF REVIEW. . . . . . . . 26 IV. SEVERABILITY AND STANDING. . . . . . . . . . . . . . . . . . . 26 A. General Principles of Standing.. . . . . . . . . . . . . . . . . . 30 B. Constitutional Standing. . . . . . . . . . . . . . . . . . . . . . . . 33 1. The Employment Provisions.. . . . . . . . . . . . . . 33 2. Private Cause of Action. . . . . . . . . . . . . . . . . . 41 3. Housing Provisions. . . . . . . . . . . . . . . . . . . . . . 43 a. Landlord Plaintiffs.. . . . . . . . . . . . . . . . 44 b. Tenant Plaintiffs. . . . . . . . . . . . . . . . . . 52 C. Prudential Standing. . . . . . . . . . . . . . . . . . . . . . . . . . . 56 7

V. ANONYMITY AND CONFIDENTIALITY.. . . . . . . . . . . . . 62 VI. DISCUSSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 A. Federal Immigration Law.. . . . . . . . . . . . . . . . . . . . . . 67 1. The Immigration and Nationality Act. . . . . . . . 67 2. The Immigration Reform and Control Act. . . . 73 3. The Illegal Immigration Reform and Immigrant Responsibility Act. . . . . . . . . . . . . . . . . . . 78 B. State and Local Immigration Laws.. . . . . . . . . . . . . . . 81 C. Pre-emption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 1. Employment Provisions. . . . . . . . . . . . . . . . . . 94 a. Presumption Against Pre-emption. . . . 94 b. Express Pre-emption. . . . . . . . . . . . . . . 97 c. Conflict Pre-emption.. . . . . . . . . . . . . 105 2. Housing Provisions. . . . . . . . . . . . . . . . . . . . . 132 VII. CONCLUSION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 VIII. APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 A. The Illegal Immigration Relief Act Ordinance. . . . . 147 B. Rental Registration Ordinance. . . . . . . . . . . . . . . . . . 167

I. INTRODUCTION " S in c e the late 19th century, the United States has re stric te d immigration into this country. . . . But despite the e x is te n c e of these legal restrictions, a substantial number of p e rs o n s have succeeded in unlawfully entering the United 8

S ta te s, and now live within [the] various States." Plyler v. Doe, 4 5 7 U.S. 202, 205 (1982). The dispute we are now called upon to address is one of an increasing number of cases that have a ris e n from actions that state and local governments have taken b e c a u s e of illegal immigration. The City of Hazleton, Pennsylvania ("Hazleton" or the " C ity" ) is appealing a permanent injunction that the district c o u rt entered prohibiting Hazleton's enforcement of two local o rd in a n c es that attempt to regulate employment of, and p ro v is io n of rental housing to, certain aliens. Several

in d iv id u a ls and organizations sued to enjoin enforcement of the o rd in a n c es arguing that they violate the United States C o n s titu tio n , as well as federal and state statutes. The district c o u r t agreed and enjoined Hazleton from enforcing the o rd in a n c e s in their entirety. We now hold that the district court erred in reaching the 9

m e rits of the challenge to the private cause of action provision b e c au s e no plaintiff has standing to challenge that provision. A c c o rd in g ly, that portion of the district court's order will be v a c ate d . However, although our reasoning differs somewhat f ro m the analysis used by the district court, we conclude that it c o rre c tly enjoined the rest of the challenged ordinances. We w ill therefore affirm the district court's order in all other r e sp e c t s. I I . FACTUAL AND PROCEDURAL BACKGROUND A . Hazleton and its Ordinances T h e City of Hazleton is located in Luzerne County in n o rth e a s te rn Pennsylvania. Lozano v. City of Hazleton, 496 F. S u p p . 2d 477, 484 (M.D. Pa. 2007). Under Pennsylvania law, H a z le to n is classified as a City of the Third Class and operates u n d e r an "Optional Plan B" form of government. Id. Its

e x e c u tiv e is a mayor, and its legislature is a city council. Id. 10

H a z l e t o n 's population was only 23,000 in 2000. Id. B e tw e e n 2000 and the time of trial, however, its population i n c re a s e d to between 30,000 and 33,000. Id. Much of this g ro w th was due to an influx of Latino families who migrated f ro m New York and New Jersey to Pennsylvania in the early 2 0 0 0 s . Id. These newcomers included United States citizens a n d lawful permanent residents, as well as persons lacking la w f u l immigration status, who are often referred to as " u n d o c u m e n te d immigrants" or "illegal aliens." 1 Id.

Hazleton refers to persons who are not lawfully present within the United States as "illegal aliens." Plaintiffs refer to them as "undocumented immigrants." We recognize that there are significant criticisms of each term. See, e.g., Beth Lyon, When More "Security" Equals Less Workplace Safety: Reconsidering U.S. Laws that Disadvantage Unauthorized Workers, 6 U. Pa. J. Lab. & Empl. L. 571, 576 (2004) ("Scholarly and popular concerns about the phrase `illegal alien' abound, pointing out that the phrase is racially loaded, ambiguous, imprecise, and pejorative."); Martinez v. Regents of the Univ. of Cal., 83 Cal. Rptr. 3d 518, 522 n.2 (Cal. Ct. App. 2008) ("[T]he term `illegal alien' [is] less ambiguous [than the term `undocumented immigrant.']"), rev. granted, 198 P.3d 1 (Cal. 2008). (continued...) 11

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H a z l e t o n ' s mayor, as well as other local officials, su b se q u e n tly concluded that aliens lacking lawful status were to b la m e for certain social problems in the City, see J.A. 1672-85, a n d that the federal government could not be relied upon to p re v e n t such aliens from moving into the City, or to remove th e m , see Lozano, 496 F. Supp. 2d at 522 n.44. Accordingly, C ity officials decided to take independent action to regulate the lo c a l effects of unlawful immigration. See J.A. 1385, 1486-87.

(...continued) Federal immigration law defines an "alien" as "any person not a citizen or national of the United States." 8 U.S.C. § 1101(a)(3). "Immigrant" is defined as "every alien except an alien who is within [certain specified] classes of nonimmigrant aliens," and generally refers only to lawful permanent residents. 8 U.S.C. § 1101(a)(15). Congress has preferred the term "alien" to describe those persons who lack lawful immigration status, see, e.g., 8 U.S.C. §§ 1182, 1227, 1228. We will use the word "alien" rather than "immigrant" because "alien" is more precise, and precision is important to discussions in this area. When discussing issues of employment, we will use the official term: "unauthorized alien." 8 U.S.C. § 1324a. However, when discussing issues of immigration status, we will use either: "aliens not lawfully present" or "aliens lacking lawful immigration status," rather than "illegal aliens." 12

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B e g in n in g on July 13, 2006, Hazleton's City Council began e n a c t in g a series of ordinances designed to address these c o n c e rn s . Lozano, 496 F. Supp. 2d at 484. This litigation concerns two of those ordinances: the Ille g a l Immigration Relief Act Ordinance ("IIRAO"), which c o n sis ts of Ordinance 2006-18, as amended by Ordinance 20064 0 and Ordinance 2007-6; and the Rental Registration O rd in a n c e ("RO"), which consists of Ordinance 2006-13.2 T h e se ordinances attempt to regulate the employment of u n a u th o riz e d aliens, and the provision of rental housing to aliens

On July 13, 2006, Hazleton enacted Ordinance 2006-10, the first version of the IIRAO. On August 15, 2006, the City enacted Ordinance 2006-13, the RO. On September 21, 2006, Hazleton enacted Ordinance 2006-18, a revised version of the IIRAO, which replaced Ordinance 2006-10 in its entirety. On December 28, 2006, Hazleton enacted Ordinance 2006-40, which amended the IIRAO by adding an "implementation and process" section. Finally, during trial, the City enacted Ordinance 2007-6, which again amended the IIRAO to provide that complaints based, in full or in part, on national origin, ethnicity, or race, would be considered invalid. The full-text of these ordinances is attached as an Appendix. 13

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la c k in g lawful immigration status, within Hazleton. 1 . The Illegal Immigration Relief Act Ordinance T h e IIRAO begins with a statement of findings and a d e c l a ra tio n of purpose, which asserts: [ t]h a t unlawful employment, the harboring of illegal aliens in dwelling units in the City of Hazleton, and crime committed by illegal aliens harm the health, s a f ety and welfare of authorized US workers and legal residents in the City of H a z le to n . Illegal immigration leads to higher crime rates, subjects our h o s p ita ls to fiscal hardship and legal residents to substandard quality of care, c o n trib u t e d to other burdens on public services, increasing their cost and d im in is h in g their availability to legal residents, and diminishes our overall q u a lity of life. IIR A O § 2C.3 In response to these concerns, the IIRAO: s e e k s to secure to those lawfully present in the United States and this City, w h e th e r or not they are citizens of the United States, the right to live in peace f r e e from the threat [of] crime, to enjoy the public services provided by this c ity without being burdened by the cost of providing goods, support and s e rv ic e s to aliens unlawfully present in the United States, and to be free of the d e b ilita tin g effects on their economic and social well being imposed by the in f lu x of illegal aliens to the fullest extent that these goals can be achieved c o n sis te n t with the Constitution and Laws of the United States and the C o m m o n w e a lth of Pennsylvania.

It is important to note that the parties hotly contest whether aliens in Hazleton actually caused any of these purported problems and whether Hazleton officials had any valid reason to think they did. The district court did not make any factual findings about the cause of any social or fiscal problems Hazleton may be facing, and our discussion should not be interpreted as supporting either side of that debate. 14

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IIR A O § 2F. S e c tio n 4 of the IIRAO asserts that it is unlawful "for any b u sin e ss entity" to "recruit, hire for employment, or continue to e m p lo y" or "permit, dispatch, or instruct any person" who is an " u n la w f u l worker" to perform work within Hazleton.4 IIRAO § 4A. Under the IIRAO, an "unlawful worker" is defined as: "a p e rso n who does not have the legal right or authorization to w o rk due to an impediment in any provision of federal, state or lo c a l law, including but not limited to a minor disqualified by n o n a g e , or an unauthorized alien as defined by [8 U.S.C. § 1 3 2 4 a(h )(3 )]." IIRAO § 3E. Section 4A requires "[e]very b u s i n e s s entity that applies for a business permit" to "sign an

The IIRAO defines "business entity" broadly to mean "any person or group of persons performing or engaging in any activity, enterprise, profession, or occupation for gain, benefit, advantage, or livelihood, whether for profit or not for profit." IIRAO § 3A. The term encompasses (but is not limited to) "selfemployed individuals, partnerships, corporations, contractors, and subcontractors." IIRAO § 3A(1). It includes "any business entity that possesses a business permit, any business entity that is exempt by law from obtaining such a business permit, and any business entity that is operating unlawfully without such a business permit." IIRAO § 3A(2). 15

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a f fid a v it . . . affirming that they do not knowingly utilize the s e rv ic e s or hire any person who is an unlawful worker." IIRAO § 4A. Section 4 also provides for public monitoring, p ro se c u tio n , and sanctions. Any City resident may submit a c o m p l a in t to Hazleton's Code Enforcement Office alleging that a local business entity is violating the section's prohibition on u tilizin g the services of an unlawful worker. IIRAO § 4B(1). U p o n receipt of such complaint, the Code Enforcement Office re q u e sts identity information about the alleged unlawful worker f ro m the employing business, and that business must provide the in f o rm a tio n within three business days, or Hazleton will suspend its business license. IIRAO § 4B(3). If the worker is alleged to b e an unauthorized alien, the Code Enforcement Office submits a n y identity information received from the business to the f e d era l government, pursuant to 8 U.S.C. § 1373, for v e rif ic a tio n of "the immigration status of such person(s)." 5 Id.
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8 U.S.C. §1373(c) states: "The Immigration and (continued...) 16

If the Code Enforcement Office confirms that the worker la c k s authorization to work in the United States, the business m u st terminate that person within three business days or the City w ill suspend its business license.6 IIRAO § 4B(4). Safe harbor fro m this sanction is provided to businesses that verify the work a u th o r iz a tio n of its workers through use of the "Basic Pilot P ro g ra m " (which has since been named "E-Verify"). IIRAO § 4B (5). E-Verify is a federal program for verifying work

a u th o riz a tio n which Congress has authorized for use on a trial b a s is . A business whose license is suspended under the IIRAO

(...continued) Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information." This three business day period is tolled if the business entity acquires further information about the worker and requests a secondary verification from the federal government of the worker's authorization, or if the business entity tries to terminate the worker and that worker challenges the termination in Pennsylvania state court. IIRAO § 7C. 17
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re g a in s its license one business day after it submits an affidavit a f f irm in g that it has terminated the unlawful worker. IIRAO § 4 B (6 ). If a business is found to have employed two or more u n a u th o riz e d aliens at one time, it must also confirm its e n ro llm en t in E-Verify in order to recover its license.7 IIRAO § 4B(6)(b). If a business entity violates the IIRAO a second tim e , Hazleton suspends its license for a minimum of twenty d a ys and reports the violation, whether or not eventually co rrected , to the federal government. IIRAO § 4B(7). T h e IIRAO further creates a private cause of action a g a in s t businesses that employ unlawful workers. Section 4E of th e IIRAO makes it "an unfair business practice" for a business e n tity to discharge "an employee who is not an unlawful w o r k e r," if, on the date of the discharge, "the business entity w a s not participating in [E-Verify] and the business entity was e m p l o yin g an unlawful worker." IIRAO § 4E(1). An employee

City agencies and business that contract with the City for amounts greater than $10,000 are also required to enroll in EVerify. IIRAO § 4C-D. 18

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d isc h a rg e d under these conditions may sue the business entity u n d e r the IIRAO for treble actual damages, as well as rea so n ab le attorney's fees and costs.8 IIRAO § 4E(2). T h e IIRAO also addresses the "harboring" of persons la c k in g lawful immigration status. Section 5 makes it "unlawful f o r any person or business entity that owns a dwelling unit in the C ity to harbor an illegal alien in the dwelling unit, knowing or in reckless disregard of the fact that an alien has come to, e n te re d , or remains in the United States in violation of law." 9 IIR A O § 5A. "Harboring" is broadly defined. The ordinance s ta te s: "to let, lease, or rent a dwelling unit to an illegal alien . . . shall be deemed to constitute harboring." IIRAO § 5A(1). A d d itio n a lly, Section 7 of the IIRAO makes legal immigration s ta tu s a condition precedent to entering into a valid lease. IIR A O § 7B. All leases entered into by persons lacking lawful s ta tu s are deemed breached. Id.

Even an employee who is properly terminated for cause (or without cause in the case of an employee at will) has a cause of action under this provision. The ordinance uses "lost" wages as a measure of "damages." IIRAO § 4E(2). The IIRAO defines an "illegal alien" as "an alien who is not lawfully present in the United States, according to the terms of United States Code Title 8, section 1101 et seq." IIRAO § 3D. 19
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T h e mechanisms for enforcing the housing provisions of th e IIRAO are similar to those set forth above for enforcing the e m p l o ym e n t provisions. Thus, any City resident may file a c o m p l a in t with Hazleton's Code Enforcement Office alleging th a t a property owner is illegally "harboring" a tenant who is an " ille g a l alien." IIRAO § 5B(1). Once such a complaint is re c eiv e d , the Code Enforcement Office may request identifying in f o rm atio n about the named tenant from the property owner, a n d the property owner must provide that information within th re e days. IIRAO § 5A(3). The City then verifies the legality o f the tenant's immigration status with the federal government, p u rs u a n t to 8 U.S.C. § 1373(c). IIRAO § 5B(3). If the federal government confirms that the tenant lacks la w f u l immigration status, the IIRAO gives the property owner f iv e business days to evict that tenant. IIRAO § 5B(4). If the o w n e r fails to do so, the City suspends the owner's rental license a n d bars the owner from collecting any rent for the applicable d w e llin g unit.1 0 IIRAO § 5B(4)-(5). These sanctions end one

This five business day period is tolled if the property owner acquires further information about the tenant and requests a secondary verification from the federal government of the tenant's immigration status, or if the property owner tries to evict the tenant (continued...) 20

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b u s in e ss day after the owner submits an affidavit affirming that s /h e has corrected the violation. IIRAO § 5B(6). Any

s u b s e q u e n t violation subjects the owner to a fine of $250.00 per d a y per "adult illegal alien" harbored in a dwelling unit, as well as suspension of her/his rental license. IIRAO §§ 5A(2), 5B(8). 2 . The Rental Registration Ordinance T h e RO operates in conjunction with the anti-harboring p ro v isio n s of the IIRAO. Section 7 of the RO requires that any p ro s p e c tiv e occupant of rental housing over the age of eighteen a p p ly for and receive an occupancy permit. RO §§ 1m, 7b. To re c eiv e that permit, the prospective occupant must pay a tend o ll a r fee and must submit certain documents, including " [ p ]ro p e r identification showing proof of legal citizenship a n d /o r residency" to Hazleton's Code Enforcement Office. RO § 7b. Hazleton landlords are required to inform all prospective o c c u p an ts of this requirement, and they are prohibited from a llo w in g anyone over the age of eighteen to rent or occupy a re n ta l unit, unless that person has a permit. Id. Section 10 of the RO provides that a landlord found

(...continued) and that tenant challenges the eviction in Pennsylvania state court. IIRAO § 7D. 21

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g u ilty of renting to someone without a permit must pay an initial f in e of $1000 per unauthorized occupant, and an additional fine o f $100 per day per unauthorized occupant until the violation is c o rre c te d . RO § 10b. An authorized occupant of rental housing w h o is found guilty of permitting someone without a rental p e rm it to live in her/his apartment must pay the same fine. Id. B . The Plaintiffs T h e following six plaintiffs claim that they have standing to bring this suit: Pedro Lozano, John Doe 1, John Doe 3, John D o e 7, Jane Doe 5, and the Hazleton Hispanic Business A s s o c ia tio n ("Plaintiffs").1 1 These Plaintiffs include Hazleton b u s in e ss entities, landlords, and tenants, as well as an o rg a n iz a tio n whose members include Hazleton business entities a n d landlords. We briefly describe these Plaintiffs, and the b a sic facts underlying each Plaintiff's claim to standing. P e d ro Lozano is a lawful permanent resident who im m ig rated to the United States from Colombia in January 2002. L o z a n o , 496 F. Supp. 2d at 485-86. He owns a duplex in

Eleven plaintiffs filed the operative complaint. The district court dismissed three of them for lack of standing, and that portion of the district court's decision is not being appealed. Of the eight plaintiffs the district court found to have standing, only six press their cases on appeal. 22

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H a z le to n and rents out half of it to help pay his mortgage. Id. at 4 8 8 . He hires contractors to perform repairs on his property as n e e d ed . Id. at 489. J o h n Doe 1 was born in Mexico, and had lived in H a z le to n for six years at the time of trial. Id. at 486. He is u n s u re of his immigration status, but believes that he could be re m o v e d from the United States. Id. He is similarly unsure of h is work authorization. Id. John Doe 1's landlord evicted him b e c au s e of the risk of being fined pursuant to the a f o re m e n tio n e d provisions of the IIRAO and the RO. Id. at 497. J o h n Doe 3 had lived in Hazleton for four years at the tim e of trial. Id. at 486. He understands his immigration status to be "illegal," and he rents an apartment within Hazleton. Id. a t 497. John Doe 7 and Jane Doe 5 were born in Columbia and h a d lived in Hazleton for more than five years at the time of tria l. Id. at 486. They rent a house in Hazleton, but fear ev ictio n and being forced to leave Hazleton if the ordinances are e n f o rc e d . Id. at 497. T h e Hazleton Hispanic Business Association ("HHBA") is an organization of business owners from the Hazleton area 23

th a t exists to "promote the interest of [its] business members and to project the image of the Hispanic business community." Id. a t 492 (internal quotation marks omitted). HHBA's president, R u d o lf o Espinal, owns three rental properties in Hazleton and h ire s contractors to perform repairs on those properties as n e e d e d . Id. at 492-93. C . Procedural History A s noted above, numerous plaintiffs filed this action for in ju n c t iv e relief based upon challenges to the validity of the II R A O and the RO. Lozano, 496 F. Supp. 2d at 485. The d istrict court granted these plaintiffs' motion for a temporary re stra in in g order, and the parties agreed to extend that order u n til the case could be resolved on its merits. Id. These

o rd in a n c es have never been enforced, and the challenges a ss e rte d are facial. T h e amended complaint alleges that the ordinances v io la te the Supremacy Clause, the Due Process Clause, and the E q u a l Protection Clause of the United States Constitution; 42 U .S .C . § 1981; the federal Fair Housing Act, 42 U.S.C. §§ 36013 1 ; plaintiffs' privacy rights; Pennsylvania's Home Rule Charter L aw , 53 Pa. Cons. Stat. §§ 2961-67; Pennsylvania's Landlord 24

a n d Tenant Act, 68 Pa. Cons. Stat. §§ 250.101-50.602; and the lim its of Hazleton's police powers. Id. A t the conclusion of a nine-day bench trial, the district co u rt issued a thorough opinion and order permanently enjoining th e City from enforcing the ordinances. The court concluded th a t eight of the eleven plaintiffs had standing to challenge the IIR A O and the RO, and that it was appropriate for the John and J a n e Doe Plaintiffs to proceed anonymously. The court held th a t the IIRAO and the RO violate the Supremacy and Due P r o c e ss Clauses of the United States Constitution, as well as 42 U .S .C . § 1981. The court also held that Hazleton, as a City of th e Third Class, lacked authority under Pennsylvania's Home R u le Charter Law to create the IIRAO's private cause of action, a n d that it exceeded its police powers in enacting these o r d in a n c e s .12 T h is appeal followed. Hazleton argues that Plaintiffs la c k standing, and that the district court abused its discretion b o th in permitting the John and Jane Doe Plaintiffs to proceed a n o n ym o u s ly and in issuing a confidentiality order prohibiting

The district court dismissed the Equal Protection, Fair Housing Act, privacy, and Pennsylvania Landlord and Tenant Act claims, and those portions of its order have also not been appealed. 25

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H a z leto n

from

disclosing

the

Doe

Plaintiffs'

identity

in f o rm a tio n to the federal government.

Hazleton further

c o n te n d s that Plaintiffs' claims are meritless, and that the o rd in a n c e s are valid under federal and state law. III. JURISDICTION AND STANDARD OF REVIEW T h e district court had jurisdiction pursuant to 28 U.S.C. § § 1331 and 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291. W e review a district court's conclusions of law de novo a n d its factual findings for clear error. See, e.g., McCutcheon v. A m .'s Servicing Co., 560 F.3d 143, 147 (3d Cir. 2009). We re v ie w a district court's grant of a motion to proceed a n o n ym o u s ly and grant of a confidentiality order for abuse of d is c re tio n . Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 371 & n.2 (3d Cir. 2008). I V . SEVERABILITY AND STANDING W e first address the threshold question of Plaintiffs' s ta n d in g . Here, however, standing implicates the issue of

s e v e ra b i lity ­ an issue which has yet to be explicitly discussed in this suit. As we explained in Contractors Ass'n v. City of P h ila d e lp h ia , "[c]ourts considering constitutional challenges to 26

s ta tu te s often analyze standing problems in terms of the s e v e ra b ility doctrine. . . . The severability doctrine governs w h eth e r [plaintiffs] have standing to challenge [an] entire [ o ]rd in a n c e , or just [certain provisions]." 6 F.3d 990, 996 (3d C ir. 1993). S e v e ra b ility, however, like any non-jurisdictional issue, c a n be waived, and it is clear that Hazleton has, with one ex ce p tio n , waived issues of severability here. The district court c o n sid e re d whether Plaintiffs have standing to challenge the " e m p l o ym e n t provisions" and the "housing provisions" of these o rd in a n c e s as collective wholes, and conducted its merits in q u irie s accordingly. See, e.g., Lozano, 496 F. Supp. 2d at 518 (" [ T ]h e ordinances at issue have two distinct provisions, one d ire c te d to employment issues and one aimed at landlord/tenant issu e s, [and] we will discuss each topic separately with regard to pre-emption."). On appeal, Hazleton does not contest the d istrict court's failure to further sever the ordinances. Rather, H a z le to n 's brief characterizes the ordinances the same way the d is tric t court did. Thus, Hazleton argues that Plaintiffs lack s ta n d i n g to challenge the "employment provisions" and the " h o u sin g provisions," and that the "employment provisions" and 27

th e "housing provisions" are not pre-empted, without further d i f f e re n t ia tin g among those provisions.13 T h e sole severability issue Hazleton has not waived c o n c ern s the IIRAO's private cause of action. Hazleton has a r g u e d that the private cause of action is severable from the rest o f the IIRAO's "employment provisions" both in its brief and at o ra l argument. Severability of a local ordinance is a question o f state law, and Pennsylvania law favors severability. C o n tra c to rs Ass'n, 6 F.3d at 997. Additionally, there is a p re su m p tio n in favor of severability where, as here, the o rd in a n c e s contain a severability provision. Id. For an

o r d i n a n c e to be severable, "[t]he legislating body must have in te n d e d that the act or ordinance be separable and the statute or o rd in a n c e must be capable of separation in fact. The valid p o rtio n of the enactment must be independent and complete w ith in itself." Saulsbury v. Bethlehem Steel Co., 196 A.2d 664, 6 6 7 (Pa. 1964) (emphasis omitted).

We note that Hazleton's waiver of this issue likely speaks to the merits of a severability analysis as well, as severability often turns significantly on intent. If Hazleton had truly intended each provision of the IIRAO and the RO to operate independently, and to stand or fall independently of the other provisions of this regulatory scheme, it surely would have pressed that point sometime during this litigation. It has not done so. 28

13

H e re the IIRAO's severability provision indicates that H a z le to n 's City Council did intend the private cause of action p ro v isio n to be severable from the balance of its regulatory sch em e. Furthermore, the private cause of action is not

in te rtw in e d with the other "employment provisions," most of w h ich concern business licensing requirements. It can operate i n d e p e n d e n tly and is "capable of separation in fact." Id. We t h e r e f o r e conclude that it is severable. Accordingly, we will e v a lu a te Plaintiffs' standing to challenge the IIRAO's private c a u se of action independently of their standing to challenge the o th e r "employment provisions" and the "housing provisions." In essence, the question of standing asks "whether the litig a n t[ s] [are] entitled to have the court decide the merits of the d is p u te ." Warth v. Seldin, 422 U.S. 490, 498 (1975). As we w ill explain, we conclude that there is at least one Plaintiff with s ta n d in g to challenge the employment and housing provisions of th e se ordinances. Accordingly, we must consider the merits of th e challenges to those provisions. See Rumsfeld v. Forum for A c a d e m ic and Institutional Rights, Inc., 547 U.S. 47, 53 n.2 (2 0 0 6 ) ("[T]he presence of one party with standing is sufficient to satisfy Article III's case-or-controversy requirement."). 29

H o w e v e r, as we will also explain, we find that no Plaintiff has s ta n d in g to challenge the IIRAO's private cause of action. A c c o rd in g ly, review of the legality of that provision must await a challenge by a plaintiff who can establish an Article III injury. A . General Principles of Standing T h e irreducible minimum of any standing inquiry derives d ire c tly from Article III of the United States Constitution. See L u ja n v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). A rtic le III limits the jurisdiction of federal courts to "Cases" and " C o n tro v e rsie s." U.S. Const. art. III, § 2; see also Lujan, 504 U .S . at 559-60. The judicial power established by Article III is th e re f o re not "an unconditioned authority to determine the c o n stitu tio n a lity of legislative or executive acts." Hein v.

F r e e d o m From Religion Found., Inc., 551 U.S. 587, 598 (2007) (in tern a l quotation marks omitted). Rather, federal courts are p e rm itte d to address these questions only if actually adjudicating " th e rights of individuals." Id. (internal quotation marks

o m itte d ). Thus, the inquiry into standing must focus on whether a claim is being brought "by a party whose interests entitle him to raise it." Id. (internal quotation marks omitted). A plaintiff's " in ter e sts " satisfy Article III when the following three elements 30

a re present: F irst, the plaintiff must have suffered an injury in f ac t ­ an invasion of a legally protected interest w h ic h is (a) concrete and particularized, and (b) a c t u a l or imminent, not conjectural or h yp o th e ti ca l. Second, there must be a causal c o n n e c tio n between the injury and the conduct c o m p lai n e d of ­ the injury has to be fairly t ra c e a b le to the challenged action of the d e f en d a n t, and not the result of the independent a c tio n of some third party not before the court. T h ird , it must be likely, as opposed to merely s p e c u la tiv e , that the injury will be redressed by a f a v o ra b le decision. L u ja n , 504 U.S. at 560-61 (internal citations, quotation marks, a n d alterations omitted). In addition to these constitutionally required elements of s ta n d in g , federal courts have developed a body of self-imposed lim ita tio n s on the exercise of their judicial power. See Elk G r o v e Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004); see a ls o Oxford Assocs. v. Waste Sys. Auth., 271 F.3d 140, 145 (3d C ir. 2001). Accordingly, "[e]ven in cases concededly within our ju ris d ic ti o n under Article III," we will decline to decide the m e rits of a case when these "prudential standing" requirements a re not satisfied. Elk Grove Unified Sch. Dist., 542 U.S. at 11. P r u d e n tia l standing encompasses: "the general prohibition on a litig a n t's raising another person's legal rights, the rule barring 31

a d ju d ica tio n of generalized grievances more appropriately a d d re ss e d in the representative branches, and the requirement th a t a plaintiff's complaint fall within the zone of interests p ro te c te d by the law invoked." Allen v. Wright, 468 U.S. 737, 7 5 1 (1984). A n organization wishing to bring suit on behalf of its m e m b e r s must satisfy a specific combination of constitutional a n d prudential standing requirements. See United Food and C o m m e rc ia l Workers Union Local 751 v. Brown Grp., Inc., 517 U .S . 544, 556-57 (1996) (explaining that the first two prongs of th e associational standing test are constitutional, while the third p ro n g is prudential). To establish that it has "associational s ta n d in g " and can represent its members' interests in federal c o u rt, an organization must show that: (a ) its members would otherwise have standing to su e in their own right; (b) the interests it seeks to p ro tect are germane to the organization's purpose; a n d (c) neither the claim asserted nor the relief re q u e ste d requires the participation of individual m e m b e rs in the lawsuit. H u n t v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (19 7 7 ). H e re , Plaintiffs claim that Lozano and the HHBA have

32

s ta n d in g to challenge the employment provisions of the IIRAO, a n d that Lozano, the HHBA, and the Doe Plaintiffs have s ta n d in g to challenge the housing provisions of the IIRAO and th e RO. B. Constitutional Standing 1 . The Employment Provisions A s discussed above, the IIRAO's employment provisions re q u ire businesses to submit affidavits affirming that they do not u tiliz e the services of unlawful workers; incentivize, and in c e rta in circumstances mandate, the use of E-Verify; create p ro c e d u re s for adjudicating independently of federal law w h e th e r a business has employed an unauthorized alien; and p e n a liz e a business for doing so by suspending its business lic e n s e . The district court held that Lozano had standing to c h a lle n g e these provisions for himself, and that the HHBA had s ta n d in g to challenge them on behalf of its member, Rudolfo E s p in a l.1 4 Lozano is a landlord, and Espinal is a landlord and

Assuming the other requirements of associational standing are met, one member with standing is sufficient for an organization to have standing. See Hunt, 432 U.S. at 342 ("[A]n association may have standing solely as the representative of its (continued...) 33

14

o w n e r of a real estate agency. Both are business entities under t h e IIRAO,1 5 and both sometimes hire contractors to perform w o rk on their rental properties. Accordingly, the district court f o u n d that they faced imminent concrete injury, because if the IIR A O were enforced, they would be compelled "to comply w ith [its] employer requirements . . . adding a burden of time

(...continued) members. . . . The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit.") (alteration in original) (internal quotation marks omitted) (emphasis added). The employment provisions of the IIRAO regulate the behavior of all "business entities," a term which as we noted above, is defined expansively and includes even those entities that do not have or need business licenses. At the same time, compliance with these provisions is primarily, although not entirely, coerced through regulating the provision of business licenses. Lozano and Espinal are plainly business entities under the IIRAO; however, neither has testified as to whether he has a business license. We agree with the Court of Appeals for the Eighth Circuit when faced with the same issue in Gray v. City of Valley Park, 567 F.3d 976 (8th Cir. 2009), that this does not deprive them of standing. Regardless of whether these Plaintiffs have business licenses, the IIRAO applies to them as business entities, and they "must, as law-abiding citizens, comply and conform their conduct according to [the ordinance's] directives." Id. at 985; see also id. at 986 ("At the very least, as a business entity covered by the ordinance, [plaintiffs] may not knowingly recruit, hire for employment, or continue to employ, an unlawful worker to perform work within the City. And, when a valid complaint is lodged, [plaintiffs] would be required to . . . provide identity information to the . . . Code Enforcement Office.") (internal citation omitted). 34
15

14

a n d expense to [their] operations." See Lozano, 496 F. Supp. 2d a t 489. Hazleton challenges the district court's conclusion on s e v e r a l grounds. H a z le to n 's primary argument on appeal is that the " in ju ry" these Plaintiffs face is nothing more than the "cost of c o m p l ia n c e" with the IIRAO, and that this is a generalized b u rd e n insufficiently particularized to satisfy the injury-in-fact req u irem en t of Article III. It is well-established that an injury m u s t be particularized to support standing. A "particularized" in ju ry is one that "affect[s] the plaintiff in a personal and in d iv id u a l way," Alston v. Countrywide Fin. Corp., 585 F.3d 7 5 3 , 763 (3d Cir. 2009) (quoting Lujan, 504 U.S. at 560 n.1) (in te rn a l quotation marks omitted), and is established when a p lain tiff shows that s/he has "sustained or is immediately in d a n g e r of sustaining some direct injury . . . and not merely that [ s/]h e suffers in some indefinite way in common with people g e n e r a l ly," Ams. United for Separation of Church & State v. R e a g a n , 786 F.2d 194, 199 (3d Cir. 1986) (internal quotation m a rk s omitted). Thus, the Supreme Court has rejected attempts by ta x p a ye rs to bring suits challenging the government's use of tax 35

d o lla rs . For instance, in Frothingham v. Mellon, 262 U.S. 447 (1 9 2 3 ), the Supreme Court held that a taxpayer lacked standing t o challenge a federal appropriations act that she alleged v io la te d the Tenth Amendment. The Court explained that the h a rm a taxpayer suffers when the government unlawfully uses ta x p a ye r funds is "shared with millions of others [and] c o m p a r a tiv e ly minute and indeterminable." Id. at 487. Because s u c h an injury is a matter "of public and not of individual c o n c e rn ," it is not particularized, and therefore insufficient to g iv e rise to Article III standing. Id. The Court has reaffirmed th is conclusion many times since, explaining that: a plaintiff raising only a generally available g rie v a n c e about government ­ claiming only harm to his and every citizen's interest in proper a p p lic a tio n of the Constitution and laws, and se e k in g relief that no more directly and tangibly b e n e fits him than it does the public at large ­ does n o t state an Article III case or controversy. L u ja n , 504 U.S. at 573-74. H a z le to n attempts to transpose these principles into a q u ite different context. Hazleton suggests that because all

b u s in e s s entities in Hazleton are required to comply with the IIR A O , the burden of complying with the ordinance is " g e n era liz e d " and not "particularized." Accordingly, it argues 36

th a t Lozano and Espinal ­ and presumably all business entities in Hazleton ­ lack standing to challenge the IIRAO's provisions a f f e c tin g them. The argument could not be more misguided. Plaintiffs here are not members of the general public c o m p l a in in g of some indefinite and indeterminable harm, such as the unconstitutional expenditure of their tax-dollars. Rather, L o z a n o and Espinal are direct targets of an ordinance they allege to be unconstitutional, complaining of what that ordinance w o u ld compel them to do. Thus, the appropriate comparison is not to taxpayers seeking invalidation of government

e x p e n d itu re s, but to taxpayers seeking invalidation of taxes im p o s e d on them. As the Supreme Court explained in Hein, 551 U . S . at 599, it is incontrovertible that taxpayers in this second c a teg o ry have standing: "[o]f course, a taxpayer has standing to c h a lle n g e the collection of a specific tax assessment as u n c o n stitu tio n a l; being forced to pay such a tax causes a real and im m e d ia te economic injury to the individual taxpayer." Furthermore, Hazleton's insistence that these Plaintiffs la c k standing because their injuries are widely-shared (at least a m o n g business entities in Hazleton) is misplaced. The fact that a n injury is widely-shared is not the primary focus of the 37

p a rtic u la riz e d inquiry. See Fed. Election Comm'n v. Akins, 524 U .S . 11, 23-24 (1998). As the Supreme Court explained in U n ite d States v. Students Challenging Regulatory Agency P r o c e d u r e s ("SCRAP"), 412 U.S. 669, 688 (1973), "[t]o deny s ta n d in g to persons who are in fact injured simply because many o th e rs are also injured, would mean that the most injurious and w id e s p re a d Government actions could be questioned by nobody. W e cannot accept this conclusion." The question of particularity tu rn s on the nature of the harm, not on the total number of p e rs o n s affected. L o z a n o and Espinal will not suffer in some "indefinite w a y in common with people generally" if the IIRAO is e n f o rc e d . Frothingham, 262 U.S. at 488. Rather, they will be a f f e c te d in a "personal and individual way" by what the IIRAO re q u ire s of them. Lujan, 504 U.S. at 561 n.1. Enforcement of th e IIRAO would create coercive pressures compelling them to in v e stig a te the work authorization status of the prospective c o n tra c to rs they seek to hire. Additionally, they would be re q u ire d to submit affidavits to Hazleton's Code Enforcement O f f ic e affirming that they do not knowingly utilize the services o f "unlawful workers." Failure to comply with either directive 38

c o u ld result in significant sanctions. These costly requirements, im p o s e d directly and purposefully on these Plaintiffs, are a p a rticu lar ize d injury-in-fact. H a z le to n also argues that even if the "cost of co m p lian ce " is a theoretically sufficient injury under Article III, th e se Plaintiffs fail to show that the cost of compliance with the IIR A O is greater than the cost of compliance with federal law. T h u s , argues Hazleton, these Plaintiffs fail to show that there w o u ld be any actual cost of compliance with the IIRAO itself. H az leto n is mistaken. Federal law certainly does not require a n yo n e to submit an affidavit to Hazleton's Code Enforcement O f f ic e . Though relatively small, that cost is sufficient for s ta n d in g purposes. "[A]n identifiable trifle is enough for

s ta n d in g ." See SCRAP, 412 U.S. at 689 n.14 (internal quotation m a rk s omitted). The IIRAO is also much broader than federal law, and c o e rc e s as well as incentivizes different behaviors. Lozano and E sp in a l testified that they only hire workers to perform discrete re p a ir projects on their rental properties as needed. See J.A. 1 1 1 6 , 1122 (Lozano has "problems with [his] roof" and intends to hire "a contractor" to make repairs.); J.A. 1216, 1221 (Espinal 39

in ten d s to hire someone to do "plumbing" and "electrical" re p a irs as part of the ongoing renovations of his rental p ro p e rtie s. He also anticipates hiring someone for tasks such as " sh o v e lin g snow."). Such workers would almost certainly be c o n s id e re d independent contractors under federal law. As we d is c u ss in greater detail below, the federal requirement that e m p lo ye rs verify the work authorization status of their e m p lo ye e s does not apply to independent contractors. Thus, f e d e ra l law would not require either Lozano or Espinal to d e ter m in e such persons' work authorization status. In contrast, th e IIRAO prohibits Plaintiff business owners from

" p e rm it[tin g ], dispatch[ing], or instruct[ing] any person who is a n unlawful worker to perform work" (regardless of whether the p e rs o n is an employee or an independent contractor), and thus c o m p e ls them to verify the work authorization of any worker w h o se services they utilize. IIRAO § 4A; see also J.A. 1444. T h e re f o re , we reject Hazleton's attempt to refute the standing of L o z a n o and Espinal by arguing that the IIRAO imposes no b u r d e n s beyond those imposed by federal law. It clearly does. L o z a n o and Espinal have established that if the IIRAO is e n f o rc e d , it will cause them particularized injury redressable by 40

th is court. Since the employment provisions of the IIRAO apply to independent contractors, Lozano and Espinal (and therefore t h e HHBA) have standing to challenge those provisions. H o w e v e r, it is much less clear whether the private cause of a c tio n applies to independent contractors, and we must se p a ra tely evaluate whether Lozano or Espinal have standing to c h a lle n g e that provision 2 . Private Cause of Action U n lik e the other employment provisions of the IIRAO, w h ich impose restrictions on a business entity not only when it " h ire [ s] for employment, or continue[s] to employ" an e m p l o ye e , but also whenever it "permit[s], dispatch[es], or in s tru c t[ s] any person . . . to perform work," IIRAO § 4A, the p riv a te cause of action on its face affords rights only to an " a g g rie v e d employee." IIRAO § 4E (emphasis added). Under S e c tio n 4E of the IIRAO, it is an "unfair business practice" for a business entity to terminate "any employee who is not an u n l a w f u l worker" while it continues to employ an unlawful w o rk e r. Id. If it does so, the business entity is liable to the " a g g rie v e d employee" for treble damages. Id. Whereas the rest o f the IIRAO speaks of "workers," the section creating the 41

p riv a te cause of action appears to inure solely to the benefit of " e m p l o ye e s . " L o z a n o and Espinal have not testified that they currently e m p l o y anyone who would be considered an "employee," nor h a s either testified about any intent to do so. Moreover, even if th e y had ­ or even if we were to construe this section as also in u r in g to the benefit of discharged independent contractors ­ L o z a n o and Espinal have not testified that they have plans to h ire more than one person, employee or contractor, at any one tim e , and the record is insufficient to support such a finding. Y e t, the IIRAO's private cause of action arises only if at least tw o persons work for the same business entity at the same time. A d d itio n a lly, unlike other provisions they testified about, L o z a n o and Espinal did not testify that they fear prosecution u n d e r the private cause of action provision or that they have any re a so n to fear such prosecution. W e realize, of course, that the threat of future prosecution ca n certainly be a sufficiently "imminent" injury to support A rtic le III standing. See Pa. v. W. Va., 262 U.S. 553, 593 (1 9 2 3 ) ("One does not have to await the consummation of th re a te n e d injury to obtain preventive relief."). However, that 42

th re a t must be more than a possibility dependent on multiple c o n tin g e n c ie s that may never occur. See, e.g., Caribbean

M a r in e Servs. Co. v. Baldrige, 844 F.2d 668, 675 (9th Cir. 1 9 8 8 ) (explaining that fears of liability reliant on multiple c o n tin g e n c i e s do not give a plaintiff standing). Lozano and E sp in a l would be injured by Section 4E of the IIRAO only if they proceeded to hire multiple employees, terminated one while re ta in in g another, and were sued by (or had reason to fear suit b y) the terminated employee. This attenuated sequence of

ev en ts is not even suggested by this record, and it is therefore to o tenuous to support a conclusion that either has the requisite p e rs o n a l interest to establish a "case" or "controversy." A c c o rd in g ly, we conclude that the district court lacked ju ris d ic tio n to consider the merits of these Plaintiffs' challenges to the IIRAO's private cause of action. 3 . Housing Provisions T h e housing provisions of the IIRAO prohibit the k n o w in g or reckless harboring of "illegal aliens" (defined to in clu d e the knowing or reckless provision of rental housing); s u b je c t landlords who violate this prohibition to significant m o n e ta ry sanctions; and invalidate any lease entered into by 43

p e rso n s lacking lawful immigration status. The RO requires all p e r s o n s over the age of eighteen who seek to live in rented p ro p e rty to obtain an occupancy permit; makes possession of d o c u m e n ta tio n of lawful immigration status a requirement for re c e iv in g that permit; prohibits landlords from renting to p e rso n s who lack a permit; and subjects landlords who do so to s u s p e n sio n of their rental license and a concomitant prohibition o n collecting rent from the dwelling units involved. The district court held that Lozano, the HHBA (again on b e h a lf of its member Espinal), and the Doe Plaintiffs have s ta n d in g as landlords and tenants to challenge the housing p ro v is io n s of the IIRAO and the RO. a . Landlord Plaintiffs T h e district court concluded that landlords Lozano and E s p in a l had suffered a constitutionally sufficient injury-in-fact b e c au s e the housing provisions made it more difficult for them to rent apartments. The court also concluded they had standing b e c a u s e Hazleton's enforcement of the housing provisions w o u ld directly impose certain requirements on them, costing th e m both time and money. See Lozano, 496 F. Supp. 2d at 48889. Hazleton contests the court's conclusions on several 44

groun ds. H a z le to n first argues that the record fails to support the d istrict court's finding that the housing provisions made it more d i f f ic u l t for Lozano and Espinal to rent their properties. A c c o rd in g to Hazleton, the record reveals that the landlords had th e same "mixed success" in renting apartments both before and a f te r passage of the ordinances. Hazleton's Br. 23. Hazleton th ere fo re claims that Lozano and Espinal have suffered no injury a t all. We cannot agree. T h e district court's finding that both Lozano and Espinal h a d more difficulty finding tenants for their properties following p a ss a g e of the IIRAO and the RO is supported by the record, a n d certainly not clearly erroneous. Lozano testified that tenants w h o had been renting from him since he acquired his rental p ro p e rty in 2005 "ran away" upon learning about the ordinances i n mid-2006. J.A. 1108. Lozano further testified that he has b e e n able to find tenants only sporadically since then, and that a t least one prospective tenant, who had been quite interested in a n apartment, reacted with concern and quickly departed after L o z a n o informed him about the requirements of the IIRAO and th e RO. J.A. 1111-12. Espinal similarly testified that he has 45

h a d more difficulty in renting apartments since passage of the o r d i n a n c e s , and that on at least one occasion, he showed an a p a rtm e n t to potential tenants, who "were going to take [it]," but a f te r telling these applicants about the ordinances, "they never c a lled [him] back." J.A. 1215. The record therefore supports th e district court's conclusion that Lozano and Espinal suffered s u f f ic ie n t injury to establish Article III standing. H a z leto n next argues that even if Lozano and Espinal did lo s e tenants and rental income because of these ordinances, such a n injury is not "legally cognizable" because landlords have no r ig h t to rent to illegal aliens. Hazleton makes the rather

h yp e rb o lic metaphor of comparing these Plaintiffs to "drug d e a le rs " asserting a claim to the proceeds of their unlawful a c tiv ity. The City states: "[j]ust as a drug dealer has no legallyc o g n iz a b le interest in income derived from violations of federal d ru g laws, a landlord has no legally-cognizable interest in in c o m e derived from continuing violations of federal im m ig ra tio n law." Hazleton's Br. 24. Hazleton's comparison is as regrettable as it is unsound. It is unfortunate that we must point out that there is no e v i d e n c e in the record that the prospective tenants who chose 46

n o t to rent from Plaintiffs were here unlawfully, as Hazleton's a rg u m e n t presumes. There are certainly other reasons why such in v a siv e ordinances might dissuade a prospective tenant from re n tin g in Hazleton. However, even if we were to assume that a ll deterred tenants were here unlawfully, we would still c o n c lu d e that Plaintiffs assert an injury cognizable under the la w . B y comparing landlords to persons who sell drugs in d ire c t contravention of federal law, Hazleton distorts both the a p p lic a b le law and the interests these Plaintiffs assert. Federal la w simply does not prohibit landlords from renting (in the o rd in a r y course of business) to persons who lack lawful im m ig ra tio n status. Nor does federal law directly prohibit

p e rs o n s lacking lawful status from renting apartments. As we d is c u ss in further detail below, there is a federal prohibition ag ain s t "harboring" of aliens lacking lawful presence. However, th is prohibition is not nearly so broad as Hazleton's, and has n ev er been held to apply to a landlord who does nothing more th a n rent to a tenant who happens to be here unlawfully. In light o f these realities, we think the interest that these Plaintiffs assert is more appropriately characterized as an interest in continuing 47

to operate their rental businesses consistent with the less costly m a n d a tes of federal law, and that is an interest which supports A rtic le III standing. H a z le to n also argues that these Plaintiffs fail to establish th a t the IIRAO and the RO caused whatever injury they have s u f f e re d because actions of independent third-parties (the p o te n tia l tenants) are responsible for that injury, not the o rd in a n c e s themselves. Hazleton draws its argument from the d is c u ss io n of causation in Lujan. There, the Supreme Court e x p la in e d that when the "plaintiff is himself an object" of a c h allen g ed government action, "there is ordinarily little question th a t the action . . . has caused him injury, and that a judgment . . . will redress it." Lujan, 504 U.S. at 561-62. However, when a plaintiff's asserted injury arises from the g o v e rn m e n t's allegedly unlawful regulation (or la c k of regulation) of someone else, much more is n e e d ed . In that circumstance, causation and re d re ss a b ility ordinarily hinge on the response of th e regulated (or regulable) third party to the g o v e r n m e n t action or inaction ­ and perhaps on th e response of others as well. . . . Thus, when the p la in ti f f is not himself the object of the g o v e r n m e n t action or inaction he challenges, sta n d in g is not precluded, but it is ordinarily s u b s ta n tia lly more difficult to establish. L u ja n , 504 U.S. at 562 (internal quotation marks omitted).

48

H a z leto n contends that the landlord Plaintiffs cannot satisfy this h ig h e r burden. In Pitt News v. Fisher, 215 F.3d 354 (3d Cir. 2000), we d is c u ss e d when the regulation of a third-party "causes" a p la in tif f 's injury for the purposes of Article III. There,

P e n n s ylv a n ia had amended its Liquor Code to impose criminal sa n c tio n s on businesses that advertised alcoholic beverages in p u b l ic a tio n s directed at educational institutions. The Pitt News, a student-run newspaper at the University of Pittsburgh, sued to e n jo in enforcement of this amendment, and asserted standing b a se d on the fact that its advertising revenues had suffered b e c au s e of advertisers' compliance with the law. The district c o u rt held that "indirect economic effects resulting from a re g u la tio n aimed at third parties" were insufficient to give The P itt News standing. Id. at 358. In reversing that ruling, we explained that the advertisers w o u l d not have cancelled their contracts with The Pitt News w e re it not for the regulation. The fact that advertisers would c a n c e l their contracts, thereby reducing advertising revenues, " w a s not only reasonably foreseeable when the Commonwealth d e c id e d to enact and enforce [the Act], it was the very goal of 49

th e statute." Id. at 361 (internal citation omitted). Accordingly, w e concluded that the injury the newspaper suffered was "fairly tr a c e a b le " to enforcement of the statute against its advertisers. T h e situation in Pitt News is analogous to the situation h e re . The housing provisions of the IIRAO and the RO have a lre a d y deterred certain renters from contracting for housing w ith Lozano and Espinal, and these ordinances will continue to d e te r other renters if they are enforced. This deterrence "was n o t only reasonably foreseeable" when Hazleton enacted these o rd in a n c es , it was Hazleton's "very goal." Id. The injuries L o z a n o and Espinal assert are a direct, predictable, and a n ticip a ted consequence of the regulation. Accordingly, their in j u rie s are "fairly traceable" to the ordinances. M o re o v e r, Hazleton's argument ignores that Lozano and E s p in a l are not just directly impacted by the ordinances, but d ire c tly regulated as well. The housing provisions of the IIRAO a n d the RO regulate both tenants and landlords. Although the in ju ry on which Hazleton focuses, the injury of lost rental in c o m e , is caused by the requirements imposed on tenants, the d is tric t court found, and we certainly agree, that these landlords w o u ld be equally injured by the requirements the IIRAO and the 50

R O impose on them. Thus, even if we agreed with all of H a z le to n 's arguments thus far, we would still conclude that L o z a n o and Espinal have standing. The housing provisions of th e IIRAO and the RO regulate the ability of landlords to c o n tra c t with certain persons. They require landlords to explain th e ordinances to all prospective renters and to examine those re n te rs ' occupancy permits. More generally, they compel

l a n d lo rd s to act as local enforcers of immigration law in ways th a t far exceed their obligations under federal law. Compliance w ith these requirements elevates the cost of doing business as a la n d lo rd , and that alone gives them Article III standing.16

We note, however, that the RO explicitly exempts from its registration and license requirements those "[p]roperties which consist of a double home, half of which is let for occupancy and half of which is Owner-occupied as the Owner's residence." RO § 11d. At trial, Lozano testified that he owns a "two-family" home. J.A. 1107. He lives in one unit with his family, and rents out the other unit, which is subdivided into two separate apartments, to help him pay the mortgage. See J.A. 1107-08. To our knowledge, the parties have not raised whether the "double home" exception applies to Lozano, and the district court did not address the issue. If that exception does apply, Lozano could not establish a sufficient injury to challenge the RO. See Addiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399, 405 (3d Cir. 2005) (explaining that because standing is a jurisdictional issue, it cannot be waived, and the court must, when necessary, consider it sua sponte). However, even assuming that Lozano is exempt from the RO, other Plaintiffs would still have standing to challenge that ordinance, and we therefore would still have jurisdiction to review it. 51

16

b . Tenant Plaintiffs B e c au s e "[t]he loss (or imminent loss) of one's apartment a n d the inability to rent a new one is certainly an actual and c o n c re te injury," caused by the ordinances and redressable by the court, the district c