Sign ordinance restrictions; First Amendment prior restraint claim under 42 USC § 1983; Applicability of “claim preclusion” (res judicata) or “issue preclusion (collateral estoppel) to a subsequent suit after dismissal of a prior suit for lack of jurisdiction; Whether the requirements for issue preclusion were met; Whether plaintiff could relitigate its prior-restraint claim based on a factual allegation that was the basis for its prior suit; Claim based on a new factual allegation; Standing

[This appeal was from the ED-MI.] The court held that collateral estoppel (issue preclusion) rather than res judicata (claim preclusion) applies when a court is barring a subsequent suit after dismissal of a prior suit for lack of jurisdiction. It then concluded issue preclusion did not apply to one of plaintiff-Outdoor’s prior-restraint claims in this suit challenging local sign ordinance restrictions where the claim was based on “new facts.” Outdoor previously sued defendant-Canton Township alleging that its outdoor-sign restrictions violated the First Amendment. In that suit, Outdoor was held to lack standing. It then again sued Canton in this action, arguing that the ordinance was “effectively a prohibition on billboards.” The district court again dismissed the case, based on res judicata. On appeal, the court discussed the differences between claim preclusion and issue preclusion. It noted that when barring a later “suit after dismissal for lack of jurisdiction, courts have applied both claim and issue preclusion.” It determined that “issue preclusion is the more applicable doctrine.” Next, it considered whether the prior suit satisfied the requirements for issue preclusion. It concluded that issue preclusion barred “relitigation of Outdoor’s prior-restraint claim insofar as it is based on the same facts as the prior suit” (its refusal to seek a variance for its previously denied permit application). To the extent Outdoor tried “to refashion its prior-restraint claim by presenting recycled facts under a new theory, its claim is precluded.” But the court concluded that issue preclusion did “not extend to Outdoor’s claim based on its alleged refusal to seek ‘the variance necessary to display other billboards in the Township.’” This allegation was not made in the prior suit. The issue then became whether it had standing. The court found that Outdoor presented “a new theory and some fresh facts for its constitutional injury.” It alleged that Canton’s zoning scheme required “any person seeking to put up a billboard anywhere in the township” to obtain a variance and that township officials have “‘complete discretion’” to grant or deny them. Outdoor claimed that since the first lawsuit, it “has been ‘self-censoring its speech due to the prospect of having to submit itself’ to” their discretionary review. At the least, “Outdoor’s refusal to submit any billboard applications is a new factual development.” And its “decision not to seek a billboard permit plausibly implicates its First Amendment rights.” Thus, the court held that Outdoor had “standing to bring its facial challenge.” Affirmed in part, vacated in part, and remanded.