APPENDIX TABLE OF CONTENTS
`
`OPINIONS AND ORDERS
`
`Opinion of the United States Court of Appeals
`for the Third Circuit (January 27, 2023) .................. 1a
`
`Memorandum Opinion of the United States
`District Court for the Eastern District of
`Pennsylvania Granting Motion to Dismiss
`(January 12, 2022) ...................................................... 9a
`
`Order of the United States District Court
`for the Eastern District of Pennsylvania,
`Dismissing Counts (January 12, 2022) ................... 34a
`
`REHEARING ORDER AND JUDGMENT
`
`Order of the United States Court of Appeals
`for the Third Circuit Denying Petition for
`Rehearing En Banc (February 21, 2023) ................ 36a
`
`Judgment of the United States Court of Appeals
`for the Third Circuit (March 1, 2023) .................... 38a
`
`OTHER DOCUMENT
`
`Complaint
`(April 6, 2021) ............................................................ 40a
`
`
`
`
`
`Exhibit A. Executive Order No. 2-21,
`Renaming Columbus Day to Indigenous
`Peoples’ Day ........................................................ 88a
`
`Exhibit X. Resolution Declaring Italian
`American Heritage Week .................................. 91a
`
`
`
`
`
`OPINIONS AND ORDERS
`
`Opinion of the United States Court of Appeals
`for the Third Circuit (January 27, 2023) .................. 1a
`
`Memorandum Opinion of the United States
`District Court for the Eastern District of
`Pennsylvania Granting Motion to Dismiss
`(January 12, 2022) ...................................................... 9a
`
`Order of the United States District Court
`for the Eastern District of Pennsylvania,
`Dismissing Counts (January 12, 2022) ................... 34a
`
`REHEARING ORDER AND JUDGMENT
`
`Order of the United States Court of Appeals
`for the Third Circuit Denying Petition for
`Rehearing En Banc (February 21, 2023) ................ 36a
`
`Judgment of the United States Court of Appeals
`for the Third Circuit (March 1, 2023) .................... 38a
`
`OTHER DOCUMENT
`
`Complaint
`(April 6, 2021) ............................................................ 40a
`
`
`
`
`
`Exhibit A. Executive Order No. 2-21,
`Renaming Columbus Day to Indigenous
`Peoples’ Day ........................................................ 88a
`
`Exhibit X. Resolution Declaring Italian
`American Heritage Week .................................. 91a
`
`
`
`
`
`App.1a
`
`OPINION OF THE UNITED STATES COURT
`OF APPEALS FOR THE THIRD CIRCUIT
`(JANUARY 27, 2023)
`
`NOT PRECEDENTIAL
`
`UNITED STATES COURT OF APPEALS
`FOR THE THIRD CIRCUIT
`________________________
`
`CONFERENCE OF PRESIDENTS OF MAJOR
`ITALIAN AMERICAN ORGANIZATIONS, INC.
`MARK F. SQUILLA, Philadelphia City
`Councilmember THE 1492 SOCIETY
`JODY DELLA BARBA,
`
`GRAND LODGE OF PENNSYLVANIA SONS
`AND DAUGHTERS OF ITALY
`
`Appellants.
`
`v.
`
`CITY OF PHILADELPHIA
`MAYOR JAMES F. KENNEY
`________________________
`
`No. 22 1116
`
`On Appeal from the United States District Court
`for the Eastern District of Pennsylvania
`(D.C. No. 2 21 cv 01609)
`District Judge Honorable C. Darnell Jones II
`
` This disposition is not an opinion of the full Court and, under
`I.O.P. 5.7, is not binding precedent.
`
`
`
`App.2a
`
`Submitted Under Third Circuit L.A.R. 34.1(a)
`January 18, 2023
`
`Before AMBRO, PORTER, and
`FREEMAN, Circuit Judges.
`
`(Filed: January 27, 203)
`
`
`PORTER, Circuit Judge.
`
`Philadelphia Mayor James Kenney issued an
`executive order rescinding the city’s recognition of
`Columbus Day and redesignating the holiday as
`Indigenous People’s Day. A group of Italian Americans
`sued Mayor Kenney and the City of Philadelphia for
`depriving them of equal protection of the laws. The
`District Court dismissed their complaint after it
`found that they had alleged no injury in fact. We will
`affirm.
`
`I
`
`The federal government observes Columbus Day
`on the second Monday in October to commemorate
`“the anniversary of the discovery of America.” H.J.
`Res. 10, 73d Cong. (1934) (enacted), see J.A. 52 5
`U.S.C. § 6103. Until 2021, the city of Philadelphia
`similarly marked Columbus Day as a city holiday. In
`recognition of Christopher Columbus’s Italian heritage,
`the Philadelphia City Council traditionally designates
`the week of the holiday as “Italian American Heritage
`Week.” And since 1957, the city has conducted an
`annual Columbus Day Parade.
`
`On January 27, 2021, Mayor Kenney issued
`Executive Order 2 21 replacing Columbus Day with
`Indigenous People’s Day. J.A. 43 44 and Exhibit A
`
`
`
`App.3a
`
`hereto. The Conference of Presidents of Major Italian
`American Organizations, Inc. (COPOMIAO), Philadel
`phia Councilmember Mark Squilla, the 1492 Society,
`and the 1492 Society secretary Jody Della Barba
`(collectively, “Plaintiffs”) took offense.1 They view
`Executive Order 2 21 to be the latest act in a pattern
`of hostility by Mayor Kenney against Italian
`Americans. According to Plaintiffs, additional evidence
`of Kenney’s discriminatory animus includes removing
`a statue of Italian American mayor and police
`commissioner Frank Rizzo from the Municipal Services
`Building refusing to return the statue to its owner,
`the Frank L. Rizzo Monument Committee making
`preparations to remove a Christopher Columbus statue
`in Marconi Plaza referring to Italian Americans who
`challenged the Columbus stat ue’s removal as
`“vigilantes” reassigning police captain Lou Campione
`from his South Philadelphia command omitting a zip
`code with a high concentration of Italian Americans
`from a COVID 19 vaccination list and using derogatory
`language towards Italian Americans.
`
`Plaintiffs sued Philadelphia and Mayor Kenney
`in the Eastern District of Pennsylvania under 42
`U.S.C. § 1983 alleging that they violated the Equal
`Protection Clause by redesignating Columbus Day as
`Indigenous Peoples’ Day. They asked the District
`Court to nullify Executive Order 2 21 and hold it
`
`1 COPOMIAO is a New York nonprofit that represents forty six
`Italian American organizations across the country including in
`Pennsylvania. Squilla is an Italian American councilmember for
`Philadelphia’s First District. The 1492 Society is a Pennsylvania
`nonprofit based in Philadelphia that sponsors the Columbus
`Day parade and festival. Della Barba is an Italian American
`secretary of the 1492 Society and its parade organizer.
`
`
`
`App.4a
`
`unconstitutional, stop the city from changing the
`holiday, and declare that Italian Americans are a
`protected class.
`
`The District Court dismissed the suit for lack of
`standing because Plaintiffs failed to plead an injury
`in fact. Plaintiffs timely appealed.2 We have jurisdiction
`under 28 U.S.C. § 1291.
`
`II
`
`We review de novo a motion to dismiss for lack
`of subject matter jurisdiction. In re Horizon Healthcare
`Servs. Data Breach Litig., 846 F.3d 625, 632 (3d Cir.
`2017). In their motion to dismiss, Kenney and
`Philadelphia facially attacked the sufficiency of
`Plaintiffs’ complaint. We apply the same Rule 12(b)(6)
`standard on review, accepting all well pleaded factual
`allegations as true and drawing all reasonable
`inferences in Plaintiffs’ favor. Id. at 632–33 (citing
`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
`
`III
`
`Article III of the Constitution limits our judicial
`power to “cases” and “controversies.” U.S. Const. art.
`III, § 1. We apply the doctrine of standing to identify
`those suits that are justiciable under Article III as
`cases or controversies. See Whitmore v. Arkansas,
`495 U.S. 149, 155 (1990). Whether a party has Article
`
`2 The Grand Lodge of Pennsylvania intervened on the side of
`the plaintiff in District Court. The Grand Lodge did not file a
`notice of appeal and was not named in the appeal filed by
`COPOMIAO, Squilla, the 1492 Society, and Della Barba. Its
`claims are dismissed for failure to comply with Federal Rule of
`Appellate Procedure 3(c)(1)(A).
`
`
`
`App.5a
`
`III standing to sue is the “threshold inquiry in every
`case.” Hassan v. City of New York, 804 F.3d 277, 289
`(3d Cir. 2015). The party asserting federal jurisdiction
`has the burden of proving standing. Lujan v. Defs. of
`Wildlife, 504 U.S. 555, 561 (1992).
`
`To decide standing, we ask three questions. Has
`the plaintiff suffered an injury in fact? Id. at 560. Is
`the injury “fairly traceable to the challenged action of
`the defendant”? Id (internal ellipses and brackets
`omitted). And is the injury “likely” to be “redressed
`by a favorable decision”? Id. at 561 (quotation omitted).
`A plaintiff has standing when all three questions are
`affirmatively answered.
`
`An injury in fact is “an invasion of a legally
`protected interest” that must be “(a) concrete and
`part ic ular ized and (b) act u al or immine nt , not
`conjectural or hypothetical.” Id. at 560 (internal
`quotation and citations omitted). The burden of alleging
`an injury in fact is low. Hassan, 804 F.3d at 289. A
`discriminatory classification may qualify as an injury
`in fact when “a citizen’s right to equal treatment is
`at stake.” Id. at 289–90 (citing Ne. Fla. Chapter of
`Associated Gen. Contractors of Am. v. City of
`Jacksonville, 508 U.S. 656, 657 (1993)). See also Fields
`v. Speaker of the Pa. House of Representatives, 936
`F.3d 142, 160 (3d Cir. 2019) (quoting Moore v. Bryant,
`853 F.3d 245, 250 (5th Cir. 2017) (“[T]he gravamen of
`an equal protection claim is differential government
`treatment, not differential government messaging.”).
`
`Here, Plaintiffs lack standing because they failed
`to plead an injury in fact. They allege two theories of
`
`
`
`App.6a
`
`harm, but neither amounts to “an invasion of a legally
`protected interest.” Lujan, 504 U.S. at 560.3
`
`First, Plaintiffs claim that renaming Columbus
`Day is a discriminatory classification of Italian
`Americans, an injury in itself, because it “is a holiday
`widely known to recognize Italian Americans.” J.A.
`26 see Appellant’s Br. 10. Citing Hassan, they argue
`that a discriminatory classification is sufficient to
`show injury in fact. Appellant’s Br. 18 (citing Hassan,
`804 F.3d at 289–90). But in Hassan, the discriminatory
`classification qualified as an injury in fact because it
`resulted in unequal treatment. 804 F.3d at 289. The
`plaintiffs in Hassan alleged that they were victims of
`a discriminatory NYPD surveillance program targeting
`Muslims in the aftermath of the September 11, 2001
`terrorist attacks. Id. at 284. Surveillance programs,
`we explained, “can . . . violate . . . rights that give rise
`to cognizable harms.” Id. at 292. So the injury was
`not the discriminatory classification itself, but the
`discriminatory surveillance program directed at the
`Plaintiffs because of the classification. Id. at 284.
`
`Second, Plaintiffs allege that they experienced
`unequal treatment because Mayor Kenney conferred
`a benefit on Indigenous People and imposed a burden
`on Italian Americans by renaming the city holiday.
`But they have failed to show that redesignating an
`ethnic holiday is an “invasion of a legally protected
`interest.”
`
`3 Plaintiffs attempt to add a third theory of harm in their appeal.
`They argue that Executive Order 2 21 negatively impacted the
`Columbus Day parade and festival. We do not consider this
`claim because parties may not amend their pleadings in a brief.
`Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173,
`181 (3d Cir. 1988).
`
`
`
`App.7a
`
`The government does not violate the Equal
`Protection Clause every time it affirms or celebrates
`an ethnicity. Otherwise, Columbus Day itself would
`arguably have been an equal protection violation—
`but of course it wasn’t. Under Plaintiffs’ theory,
`every national or ethnic group in Philade lphia—
`Asians, Scandinavians, Arabs, Pacific Islanders, and
`so on—could assert claims against Mayor Kenney
`and the city for declaring a holiday celebrating a
`nationality or ethnicity different than theirs. But the
`Fourteenth Amendment “does not require absolute
`equality or precisely equal advantages.” Ross v. Moffit,
`417 U.S. 600, 608 (1974) (quoting San Antonio Indep.
`Sch. Dist. v. Rodriguez, 411 U.S. 1, 24 (1973)).
`
`Plaintiffs argue that “[n]o other ethnic celebration
`was targeted” by Executive Order 2 21. Appellants’
`Br. 19. “[O]nly Italian Americans . . . were discriminated
`against by the striking of their celebration off the
`calendar by an official act.” Id. True, but “[n]o other
`ethnic celebration was targeted” because almost no
`other ethnic celebrations were specifically recognized
`in the first place.
`
`twe lve ho lid ays.
`Philadelphia observe s
`Philadelphia City Holidays, Philadelphia City Council,
`https //phlcouncil.com/holidays/ (last visited Dec. 12,
`2022). Most of the city holidays have no racial or
`ethnic valence, but honor events and causes common
`to Americans. Only two arguably embrace a particular
`ethnicity other ethnic ities receive no special
`recognition. For example, Irish American city employees
`who wish to celebrate St. Patrick must take a personal
`day. The city does not close for Yom Kippur. There is
`no time off for the Lunar New Year. Plaintiffs might
`be able to show injury under the Equal Protection
`
`
`
`App.8a
`
`Clause if Philadelphia celebrated every ethnicity but
`conspicuously excluded Italian Americ ans. But we
`cannot say that t hey have suffered “inv id ious
`discrimination” when the city selectively celebrates
`particular ethnicities with designated holidays. See
`Jamieson v. Robinson, 641 F.2d 138, 142 (3d Cir. 1981)
`(“[I]t is only invidious discrimination which offends
`the Constitution.”) (internal quotation and citations
`omitted).
`
`We do not affirm the District Court’s judgment
`cavalierly. Christopher Columbus is an important
`and inspiring figure for Plaintiffs, Italian Americans
`generally, and other Americans. To many, the mayor
`diminished Columbus’s legacy. But a politician’s flex
`does not create a federal case or controversy unless it
`is accompanied by unlawful discriminatory treatment.
`To the extent that Plaintiffs seek redress for this
`offense, their remedy is political, not legal. See Am.
`Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2103
`(2019) (Gorsuch, J., concurring) (“[R]ecourse for dis
`agreement and offense does not lie in federal liti
`gation.”) Hein v. Freedom from Religion Found., Inc.,
`551 U.S. 587, 636 (Scalia, J., concurring) (“[G]ener-
`alized grievances affecting the public at large have
`their remedy in the political process.”).
`
`IV
`
`For the reasons stated above, we will affirm the
`District Court.
`
`
`
`
`
`
`
`App.9a
`
`MEMORANDUM OPINION OF THE
`UNITED STATES DISTRICT COURT FOR THE
`EASTERN DISTRICT OF PENNSYLVANIA
`GRANTING MOTION TO DISMISS
`(JANUARY 12, 2022)
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF
`PENNSYLVANIA
`________________________
`
`CONFERENCE OF PRESIDENTS OF
`MAJOR ITALIAN AMERICAN
`ORGANIZATIONS, INC., ET AL.,
`
`Plaintiffs,
`
`v.
`
`CITY OF PHILADELPHIA and
`MAYOR JAMES F KENNEY,
`
`Defendants.
`________________________
`
`Civil Action No. 21 1609
`
`Before JONES, II., Judge.
`
`January 12, 2022
`
`MEMORANDUM
`
`I.
`
`Introduction
`
`At its core, this case is about the City of
`Philadelphia and its Mayor, James Kenney, issuing
`
`
`
`App.10a
`
`an Executive Order (“Executive Order 2 21”) that
`allegedly discriminates against Italian Americans by
`designating that the City holiday known as “Columbus
`Day” shall be known as “Indigenous Peoples’ Day” in
`the City of Philadelphia. Philadelphia City Council
`member, Mark Squilla, Jodi Della Barba, the 1492
`Society, Grand Lodge of Pennsylvania, Sons and
`Daughters of Italy,1 and Conference of Presidents of
`Major Italian American Organizations, Inc. (collectively
`“Plaintiffs”) bring the present action against the
`City of Philadelphia and Mayor James F. Kenney
`(collectively “Defendants”), alleging violations of the
`Equal Protection Clause under 42 U.S.C. § 1983 the
`Philadelphia Home Rule Charter the separation of
`powers doctrine the Pennsylvania Sunshine Act and
`the Home Rule Act. Plaintiffs also seek declaratory
`judgments to find that Italian Americans are a
`protected class, and that Executive Order 2 21 violates
`the Equal Protection Clause.
`
`Defendants have moved to dismiss the above
`captioned case in its entirety, arguing that Plaintiffs
`lack standing, the name change of the holiday
`constitutes government speech, and, Plaintiffs fail to
`state a viable equal protection claim. For the reasons
`stated herein, Defendants’ Motions for Dismissal
`(ECF Nos. 17 and 18) are granted.
`
`1 This party was brought in as an Interpleader, but, for purposes
`of this opinion, the Court will refer to the Grand Lodge and all
`other Plaintiffs collectively.
`
`
`
`App.11a
`
`II. Statement of Facts
`
`A. Columbus Day Nationally
`
`Columbus Day has been recognized as a national
`government holiday since at least 1934. Compl., ECF
`No. 1, ¶ 34. Italian immigrants and Italian Americans
`have historically embraced, and continue to celebrate,
`Christopher Columbus as a symbol of the voyage
`their families endeavored when immigrating from
`Italy to the United States. Compl. ¶ 26. Plaintiffs state
`that Columbus Day was recognized, at least in part,
`due to the discrimination Italian Americans faced.
`Compl. ¶ 30.
`
`B. Columbus Day in Philadelphia
`
`Plaintiffs claim that both Christopher Columbus
`and Italian Americans are facing persecution
`throughout the country. Compl. ¶ 36. Specifically, in
`Philadelphia, Italian Americans became concerned
`when the city began discussing whether to cancel
`Columbus Day. Compl. ¶ 36. In early 2018, Plaintiff
`and City Councilmember, Mark Squilla, enlisted Robert
`F. Petrone, Esq., a renowned Christopher Columbus
`expert, to research Columbus’s true historical record.
`Compl. ¶¶ 37 38.
`
`investigation, Petrone
`After conducting his
`provided Philadelphia City Council with two (2)
`reports detailing his findings, which found no evidence
`that Columbus mistreated Indigenous People. Compl.
`¶¶ 41 43 see Petrone’s Reports attached to Compl. as
`Exhibit F. Rather, his reports indicate that Columbus
`repeatedly protected tribal people. Compl. ¶ 43. Despite
`Philadelphia City Council having been provided with
`
`
`
`App.12a
`
`Petrone’s reports, Mayor Kenny issued Executive
`Order 2 212 on January 27, 2021, stating
`
`[T]he story of Christopher Columbus is
`deeply complicated . . . Columbus enslaved
`indigenous people, and punished individuals
`who failed to meet his expected service
`throug h v io lence and, in some c ases,
`murder . . . [O]ver the last 40 years[,] many
`states and cities have acknowledged this
`history by recognizing the holiday known as
`Columbus Day instead as Indigenous Peoples’
`Day . . . The City holiday celebrated on the
`second Monday in October, formerly known
`as Columbus Day, shall now be designated
`as Indigenous Peoples’ Day.
`
`Compl. ¶¶ 44 45 see Executive Order No. 2 21, attached
`to Compl. as Exhibit A.
`
`Following the issuance of Executive Order 2 21,
`Mayor Kenny noted
`
`While changes to City holidays may seem
`largely symbolic, we recognize that symbols
`carry power. We hope that for our employees
`and residents of color, this change is viewed
`as an acknowledgment of the centuries of
`institutional racism and marginalization
`that have been forced upon Black Americans,
`Indigenous people, and other communities
`of color. At the same time, we are clear eyed
`about the fact that there is still an urgent
`
`2 Plaintiffs state that Mayor Kenney issued such Executive Order
`unilaterally. Compl. ¶ 44.
`
`
`
`App.13a
`
`need for further substantive systemic change
`in all areas of local government.
`
`Compl. ¶ 46.
`
`C. Other Discriminatory Acts by Mayor
`Kenney
`
`In addition to changing the name of Columbus
`Day, Plaintiffs allege that Mayor Kenney has
`repeatedly taken steps that form a pattern of racial
`discrimination against Italian Americans. Compl. ¶ 66.
`For example, in a 2016 statement about immigration
`and his desire for Philadelphia to remain a sanctuary
`city, Mayor Kenney stated, “This is undocumented
`brown and black people[,] and that’s what drives the
`underlying source of anger . . . If this were [C]ousin
`Emilio or Cousin Guido, we wouldn’t have this problem
`because they’re white.” Compl. ¶ 82.
`
`In addition to his comments, Plaintiffs suggest
`that Mayor Kenney participated in a chain of
`discriminatory conduct, beginning with the removal
`of the Frank L. Rizzo statue from the steps of the
`Municipal Services Building. Compl. ¶ 67. To date,
`the City has not returned the statue to the Frank L.
`Rizzo Monument Committee. Compl. ¶ 68.3
`
`After removing the Rizzo statue, Mayor Kenney
`prepared to remove the Christopher Columbus statue
`from Marconi Plaza. Compl. ¶ 69. Despite this plan,
`Plaintiffs’ counsel was notified by a City Hall employee,
`
`3 The removal of the Frank L. Rizzo statue is currently part of
`a separate lawsuit before this Court (21 CV 1609). For purposes
`of the present opinion, the Court will not further consider the
`merits of such claim.
`
`
`
`App.14a
`
`and an immediate injunction halted its removal.
`Compl. ¶ 69.4
`
`When Italian Americans from South Philadelphia
`gathered around the Columbus statue in Marconi
`Plaza, Mayor Kenney labeled them as “vigilantes”
`and ordered them to “stand down.” Compl. ¶ 72. On
`the belief that such “vigilantes” were roaming the
`city, on June 16, 2020, Mayor Kenney ordered the
`reassignment of Police Captain Lou Campione from
`his command in South Philadelphia. Compl. ¶ 73.
`However, when crowds gathered to protest in support
`of the Black Lives Matter movement, he waived code
`and curfew violations. Compl. ¶¶ 70 71.
`
`In a more recent discriminatory action, Plaintiffs
`claim that Mayor Kenney purposefully delayed COVID
`19 v acc ine d istr ibutio n to It alian A mer ican
`communities. Compl. ¶ 75. When Philadelphia released
`the first twenty (20) Philadelphia zip codes eligible to
`receive the COVID 19 vaccines, he skipped over those
`with the largest concentration of Italian Americans.
`Compl. ¶¶ 76 77.
`
`III. Procedural History
`
`On April 6, 2021, Plaintiffs commenced the
`present action in the United States District Court for
`the Eastern District of Pennsylvania. See Compl. ¶ 1.
`On April 12, 2021, the Grand Lodge of Pennsylvania,
`Sons and Daughters of Italy filed a Motion to Intervene
`(ECF No. 10), which this Court granted on April 27,
`2021 (ECF No. 14). On May 12, 2021, Defendants
`
`4 Litigation over the removal of the Christopher Columbus statue
`is in state court. Therefore, the Court will not consider the
`merits of this issue further.
`
`
`
`App.15a
`
`filed the present Motions to Dismiss (hereinafter
`“Motions”) for both lack of jurisdiction and failure to
`state a claim. ECF Nos. 17 & 18. Defendants argue
`that, not only are Plaintiffs’ allegations frivolous, but
`they lack standing to bring the present Complaint.
`Plaintiffs filed Responses in Opposition (hereinafter
`“Responses”) on May 26, 2021, arguing not only that
`the Government cannot treat ethnic groups differently,
`but also that all Plaintiffs have standing either as
`Italian Americans themselves or as advocates on
`behalf of Italian Americans. ECF Nos. 19 & 20. With
`these filings, Defendants’ Motions are ripe for the
`Court’s review.
`
`IV. Standards of Review
`
`A. Subject Matter Jurisdiction Under Fed. R.
`Civ. P. 12(b)(1)
`
`A challenge to subject matter jurisdiction under
`Rule 12(b)(1) may take two (2) forms a facial or
`factual challenge. In re Schering Plough Corp.
`Intron/Temodar Consumer Class Action, 678 F.3d
`235, 243 (3d Cir. 2012). If a facial challenge concerns
`an alleged pleading deficiency, the trial court is
`restricted to a review of the allegations of the complaint
`and any documents referenced therein. CNA v. United
`States, 535 F.3d 132, 139 (3d Cir. 2008) Gould Elec.
`Inc. v. United States, 220 F.3d 169, 177 (3d Cir.
`2000). With a facial challenge, “the trial court must
`consider the allegations of the complaint as true.”
`Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d
`884, 891 (3d Cir. 1977).
`
`A factual challenge “concerns the actual failure
`of a plaintiff’s claims to comport factually with the
`
`
`
`App.16a
`
`jurisdictional prerequisites.” CNA, 535 F.3d at 139
`(internal citation and quotation marks omitted). If
`the challenge before the trial court is a factual
`challenge, the court does not accord any presumption
`of truth to the allegations in the complaint, and the
`plaintiff bears the burden of proving subject matter
`jurisdiction. Id. With a factual challenge, the court
`may weigh evidence outside the pleadings and make
`factual findings related to the issue of jurisdiction.
`Id. U.S. ex rel. Atkinson v. Pa. Shipbuilding Co., 473
`F.3d 506, 514 (3d Cir. 2007). “[T]he existence of
`disputed material facts will not preclude the trial
`court from evaluating for itself the merits of the
`jurisdictional claims.” Mortensen, 549 F.2d at 891. A
`court must grant a motion to dismiss pursuant to
`Fed. R. Civ. P. 12(b)(1) “if it lacks subject matter
`jurisdiction to hear a claim.” In re Schering Plough
`Corp. Intron/Temodar Consumer Class Action, 678
`F.3d at 243.
`
`B. Failure to State a Claim Under Fed. R.
`Civ. P. 12(b)(6)
`
`Rule 12(b)(6) provides for dismissal of a complaint,
`in whole or in part, for failure to state a claim upon
`which legal relief can be granted. In deciding a motion
`to dismiss, “‘[t]he issue is not whether a plaintiff will
`ultimately prevail but whether the claimant is entitled
`to offer evidence to support the claims.’” Wilkerson v.
`New Media Tech. Charter Sch. Inc., 522 F.3d 315, 318
`(3d Cir. 2008) (quoting Scheuer v. Rhodes, 416 U.S.
`232, 236 (1974)). While these claims do not require
`detailed facts, “a complaint must do more than allege
`the plaintiff’s entitlement to relief. Fowler v. UPMC
`Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). A com
`plaint must “show” the plaintiff is entitled to relief.
`
`
`
`App.17a
`
`Id. (quoting Phillips v. Cty. of Allegheny, 515 F.3d
`224, 234 235 (3d Cir. 2008)). “While legal conclusions
`can provide the framework of a complaint, they must
`be supported by factual allegations.” Ashcroft v. Iqbal,
`556 U.S. 662, 679 (2009).
`
`Courts reviewing a motion to dismiss pursuant
`to Rule 12(b)(6) must “accept all factual allegations
`as true, construe the complaint in the light most
`favorable to the plaintiff, and determine whether,
`under any reasonable reading of the complaint, the
`plaintiff may be entitled to relief.” See Phillips, 515
`F.3d at 233 (quoting Pinker v. Roche Holdings, Ltd.,
`292 F.3d 361, 374 n.7 (3d Cir. 2008)) see also Atlantic
`Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007). In the
`Third Circuit, the Court’s review “is normally broken
`into three parts (1) identifying the elements of the
`claim, (2) reviewing the complaint to strike conclusory
`allegations, and then (3) looking at the well pleaded
`components of the complaint and evaluating whether
`all of the elements identified in part one of the inquiry
`are sufficiently alleged.” Malleus v. George, 641 F.3d
`560, 563 (3d Cir. 2011).
`
`Dismissal is appropriate when, even assuming
`all of plaintiff’s claims as true, plaintiff has not
`pleaded “enough facts to state a claim to relief that is
`plausible on its face.” Twombly, 550 U.S. at 570. If a
`plaintiff does not “nudge [his/her] claims across the
`line from conceivable to plausible, [the] complaint must
`be dismissed.” Id.
`
`
`
`App.18a
`
`V. Discussion
`
`A. Standing
`
`Derived from Article III, standing “is the threshold
`inquiry in every case, one for which the ‘party invoking
`federal jurisdiction bears the burden of [proof].’”
`Hassan v. City of N.Y., 804 F.3d 277 (3d Cir. 2015)
`(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561
`(1992)). Article III standing limits the category of
`litigants empowered to maintain a lawsuit in federal
`court to seek redress for a legal wrong. Philadelphia
`Fed’n of Tchrs. v. Ridge, 150 F.3d 319, 322 323 (3d
`Cir. 1998) Pro. Dog Breeders Advisory Council, Inc.
`v. Wolff, 752 F. Supp. 2d 575, 583 (E.D. Pa. 2010).
`
`To establish standing, “a plaintiff invoking federal
`jurisdiction bears the burden of establishing three
`elements . . . First, it must establish that it has suffered
`an ‘injury in fact,’ meaning a concrete and part
`icularized invasion of a legally protected interest.”
`Hartig Drug Co., Inc. v. Senju Pharmaceutical Co.
`Ltd., 836 F.3d 261, 269 (3d Cir. 2016) (citing Lujan,
`504 U.S. at 560)). “Second, [a plaintiff] must establish
`a ‘causal connection between the injury and the
`conduct complained of—the injury has to be fairly
`traceable to the challenged action of the defendant,
`and not the result of the independent action of some
`third party not before the court.’” Id. (citing Lujan,
`504 U.S. at 506) (internal quotation marks omitted).
`Third, a plaintiff must establish “a likelihood ‘that
`the injury will be redressed by a favorable decision.’”
`Id. (citing Lujan, 504 U.S. at 561).
`
`“The existence of Article III standing often turns
`on the injury in fact element.” Hendrick v. Aramark
`Corp., 263 F. Supp. 3d 514, 519 (E.D. Pa. 2017) (citing
`
`
`
`App.19a
`
`Spokeo, Inc. v. Robins, 578 U.S. 330, 338 339 (2016)).
`Injury in fact requires particularization— “it must
`affect the plaintiff in a personal and individual way[,]”
`and it requires the injury to be concrete— “‘real’ as
`opposed to ‘abstract[,]’ [though not necessarily]
`‘tangible.’” Id.
`
`1. Standing Based on Discrimination
`
`Each Plaintiff alleges to have standing, at least
`in part, because they either are or are affiliated with
`Italian Americans, and they state that Executive
`Order 2 21 discriminates against them by replacing
`it with a holiday designated to a similarly situated
`group (Indigenous People). Response, ECF No. 20,
`10 11. Defendants state that any alleged discrimination
`is about messaging from changing the holiday’s name,
`not treatment, and it only conveys a generalized
`grievance, not a particularized and concrete harm.
`Mot., ECF No. 17, 10. Plaintiffs respond that the act
`of changing the name of Columbus Day is an
`affirmative action that results in taking from one
`group and giving to another at the former’s expense.
`Response, ECF No. 20, 25 26. Having reviewed the
`filings, the Court agrees with Defendants.
`
`“Unequal treatment is ‘a type of personal injury
`[that] ha[s] long [been] recognized as judicially
`cognizable[.]’” Hassan, 804 F.3d at 289 (citing Heckler
`v. Mathews, 465 U.S. 728, 738 (2004)). “‘Discriminatory
`classification is itself a penalty,’ and thus qualifies as
`an actual injury for standing purposes, where a
`citizen’s right to equal treatment is at stake.” Id. at
`290 (citing Saenz v. Roe, 526 U.S. 489, 505 (1999)).
`
`Just because a plaintiff disagrees with the Govern-
`ment’s actions, however, does not equate to discrim-
`
`
`
`App.20a
`
`inatory treatment. In Allen v. Wright, parents of
`Black children who were attending public schools in
`seven (7) school districts sued the Internal Revenue
`Service (“IRS”), alleging that the IRS had not adopted
`sufficient standards to deny tax exempt status to
`racially discriminatory private schools. 468 U.S. 737
`(1984). As one claim for standing, the parents alleged
`that they were directly harmed by the stigmatizing
`injury caused by racial discrimination. Id. at 738.
`The Supreme Court found that such stigmatic injury
`is insufficient for standing because, if so, “standing
`would extend nationwide to all members of the
`particular racial group against which the Government
`was alleged to be discriminating . . . [.]” Id. at 756.
`“Recognition of standing in such circumstances would
`transform the federal courts into ‘no more than a
`vehicle for the vindication of the value interests of
`concerned bystanders.’” Id. at 756 (citing U.S. v.
`SCRAP, 412 U.S. 669, 687 (1973)). See Valley Forge
`Christian Coll. v. Ams. United for Separation of Church
`and State, Inc., 454 U.S. 464, 485 (1982) (“[P]sychological
`consequence presumably produced by observation of
`conduct with which one disagrees . . . is not an injury
`sufficient to confer standing under Art. III[.]”)
`
`Similarly, here, Plaintiffs fail to identify any
`discriminatory impact they have personally experienced
`from Executive Order 2 21. Like Allen, if standing is
`found in this case based on alleged discriminatory
`treatment, then any person, apparently located in
`any state, would have standing because they either
`have some percentage of Italian ancestry (no matter
`how small) or consider themselves allies of Italian
`Americans. Though it is true that standing should
`not be denied just because many plaintiffs may bring
`
`
`
`App.21a
`
`a claim, Plaintiffs fail to explain, and this Court fails
`to see, how they have been personally impacted and
`harmed through the renaming Columbus Day to
`Indigenous Peoples’ day.5
`
`Plaintiffs continually reference Hassan to support
`that discriminatory classification is, itself, an injury
`sufficient for Article III standing. 804 F.3d at 291. In
`Hassan, a group of Muslim plaintiffs sued the city of
`New York, alleging that in the wake of the 9/11
`terrorist attacks, the New York City Police Department
`began singling out Muslims for extra surveillance.
`Id. at 285 286. The court found that these plaintiffs
`possessed standing, at least in part, because they
`claimed, “to be the very targets of the allegedly uncon-
`stitutional surveillance,
`[and
`that]
`they are
`unquestionably ‘affect[ed] . . . in a personal and indi
`vidual way.’” Id. at 291 (citing Lujan, 504 U.S. at 560
`n. 1).
`
`Unlike the plaintiffs in Hassan, Plaintiffs, here,
`fail to state any discriminatory treatment by changing
`Columbus Day to Indigenous People’s day. While the
`plaintiffs in Hassan possessed a right to be free from
`unconstitutional searches, and they were being targeted
`by the Government entirely based on
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