John Doe v. Governor of Pennsylvania ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 18-3299
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JOHN DOE,
Appellant
v.
GOVERNOR OF PENNSYLVANIA; ATTORNEY GENERAL OF PENNSYLVANIA;
SECRETARY PENNSYLVANIA DEPARTMENT OF EDUCATION
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(M.D. Pa. Civ. No. 1:18-cv-01370)
District Judge: Hon. John E. Jones, III
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Argued: April 2, 2019
Before: CHAGARES, HARDIMAN, and SILER, JR.*, Circuit Judges
(Filed: November 4, 2019)
Aaron D. Martin (Argued)
Michael D. Reed
Mette, Evans & Woodside
3401 North Front Street
Post Office Box 5950
Harrisburg, PA 17110
Counsel for Appellant
*
Hon. Eugene E. Siler, Jr., Senior Circuit Judge, United States Court of Appeals
for the Sixth Circuit, sitting by designation.
Josh Shapiro
Sean A. Kirkpatrick (Argued)
J. Bart DeLone
Office of Attorney General
15th Floor, Strawberry Square
Harrisburg, PA 17120
Counsel for Appellee
Joseph F. Canamucio
Pennsylvania State Education Association
400 North Third Street
Harrisburg, PA 17101
Counsel for Amicus Curiae
Pennsylvania State Education Association
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OPINION**
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SILER, Circuit Judge
Plaintiff John Doe appeals the district court’s denial of his motion for a
preliminary injunction in this First Amendment case. We will vacate the district court’s
order and remand for proceedings consistent with this opinion.
I.
The plaintiff in this case—using the pseudonym “John Doe”—faced state criminal
charges. He pleaded not guilty and later entered an Accelerated Rehabilitative
Disposition program. That was the end of his criminal case, but the beginning of this
controversy.
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
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Only a few months after the state filed criminal charges against Doe, an unknown
party made a complaint with the Pennsylvania Department of Education against Doe.
The complainant could do so because Doe had a license to teach elementary school, and
in Pennsylvania, the “Educator Discipline Act,” 24 P.S. § 2070.1a et seq., allows people
to report teacher misconduct. Under the Act, the Professional Standards and Practices
Commission reviews “educator misconduct cases and [creates] an educator discipline
infrastructure.” Whalen v. Dep’t of Educ., 161 A.3d 1070, 1076-77 (Pa. Commw. Ct.
2017). When someone reports teacher misconduct, the Commission investigates. And so
it did with Doe.
Doe found out about the investigation in May 2018 when the assistant chief
counsel in the Pennsylvania Governor’s Office of General Counsel sent him a letter about
it. The letter explained that the department had found probable cause to move forward.
But the investigation, the letter said, must remain confidential—even the letter itself must
not be revealed. In bold and underlined text, the letter stated that “Release or publication
of this document is a crime and may result in a conviction of a third degree misdemeanor.
24 P.S. § 2070.17b.” Appellant’s Redacted Op. Br. 5. The whole process was “strictly
confidential.” Id. Doe could not tell anyone (except his attorney) that someone had filed
a complaint. Id. Nor could he show anyone (except his attorney) the letter he received.
Id. If he did, he could be charged with a misdemeanor. 24 P.S. § 2070.17b(b).
Though not criminal itself, the Commission’s investigation threatened serious
consequences. Doe could lose his teaching license if the Commission determined he
committed an immoral, intemperate, or cruel act. See 24 P.S. §§ 2070.9a, 2070.9c(a)(1),
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(3)-(4). If the Commission imposed discipline, Doe could appeal to the Commonwealth
Court. See 24 P.S. § 2070.15.
It never came to that, though, because the Commission ultimately declined to
discipline Doe. The same assistant chief counsel sent Doe another letter in August 2018
informing him that the Department had dismissed the complaint, and the case was closed.
Like the first one, this letter again emphasized that it was confidential, and release or
publication of it could result in criminal penalties.
Doe wanted to talk about the experience, but the Act’s confidentiality provision,
24 P.S. § 2070.17b, prevented him from revealing the letters or other information he
learned through the investigation. Discussing anything about the investigation—even its
existence—would make Doe subject to criminal penalties. See 24 P.S. § 2070.17b(b).
But not entirely. Doe could ask the Commission to release information, something the
Commission does when it is “just and proper.” 24 P.S. § 2070.17b(e). Doe requested as
much, and, at the same time, filed this lawsuit under 42 U.S.C. § 1983, alleging that the
Act and its confidentiality provisions violated his free speech rights under the First
Amendment, as incorporated under the Fourteenth Amendment. He named the Governor,
Attorney General, and Secretary of the Department of Education as defendants in his July
2018 complaint. He also sought a preliminary injunction to stop enforcement of the Act
against him.
A month later, the Commission ended its investigation and dismissed Doe’s case,
finding no reason for discipline. Back in federal court two months later, the district court
determined that the Commission’s dismissal rendered a preliminary injunction
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unnecessary. The court ruled that “the dismissal of the underlying investigation removed
the exigent circumstances underlying Plaintiff’s Motion for Preliminary Injunction.”
Appellees’ Redacted Br. 5. That was the full extent of the district court’s analysis. In the
same order, it set a briefing schedule for mootness and abstention issues.
Finally, two weeks after the district court denied the preliminary injunction, the
Commission rejected Doe’s request to make the information public. Doe did not appeal
this decision to the Commonwealth Court. Instead, he filed this interlocutory appeal
under 28 U.S.C. § 1292(a)(1) asking this court to reverse the district court’s denial of his
preliminary injunction motion.
II.
When a district court denies a preliminary injunction, we review “the court’s
findings of fact for clear error, its conclusions of law de novo, and the ultimate decision .
. . for an abuse of discretion.” Reilly v. City of Harrisburg, 858 F.3d 173, 176 (3d Cir.
2017), as amended (June 26, 2017) (quoting Bimbo Bakeries USA, Inc. v. Botticella, 613
F.3d 102, 109 (3d Cir. 2010)). Although a preliminary injunction is an extraordinary
remedy with limited application, this court “must reverse if the district court has
proceeded on the basis of an erroneous view of the applicable law.” Kos Pharms., Inc. v.
Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004) (quoting Apple Computer Inc. v. Franklin
Computer Corp., 714 F.2d 1240, 1242 (3d Cir. 1983)).
We may also consider Eleventh Amendment issues for the first time on appeal. In
re Hechinger Inv. Co. of Del., Inc., 335 F.3d 244, 250-51 (3d Cir. 2003).
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III.
Although this case is before us on the denial of a preliminary injunction motion,
defendants argue we need not address that issue because we can end this case for another
reason: Doe sued the wrong parties. The Governor, Attorney General, and Education
Secretary argue that Doe cannot proceed against them because they do not have a
connection with the enforcement of the statute. They say they have never enforced the
statute, they never will enforce the statute, and, they claim, they are unsure whether they
even could enforce the confidentiality provision. So, defendants argue, if Doe wants
relief, he will have to look elsewhere.
This argument flows from the Eleventh Amendment and the well-established Ex
Parte Young doctrine. 209 U.S. 123 (1908). The Eleventh Amendment generally bars
suits against states, which extends to state officials, but Young allows plaintiffs to sue
state officials for prospective relief based on violations of federal law. Id. at 157. The
named official, though, cannot be anyone—he or she must have “some connection with
the enforcement” of the allegedly unconstitutional statute. Id. So if the named
defendants have no such connection, Doe cannot sue them.
The district court never addressed this issue because defendants never raised it
below. We can consider the argument for the first time on appeal, see In re Hechinger,
335 F.3d at 250, but we do not have to, see Bolden v. Southeastern Pa. Transp. Auth.,
953 F.2d 807, 812 (3d Cir. 1991) (en banc). In Bolden, we explained that sometimes
when “an Eleventh Amendment issue is not raised in the district court, a lack of relevant
evidence in the district court record might impede us from deciding the issue.” Id.6
Doe says the Governor could bring a criminal prosecution under 71 P.S. § 732-
301(6), which allows the Office of General Counsel to “[i]nitiate appropriate proceedings
. . . when an action or matter has been referred to the Attorney General and the Attorney
General refuses or fails to initiate appropriate proceedings.” The Governor’s Office
seems prepared to do so, Doe argues, because it sent him letters warning him about the
criminal penalties for violating the confidentiality provision. And the Attorney General
can prosecute “[c]riminal charges investigated by and referred to him by a
Commonwealth agency arising out of enforcement provisions of the statute charging the
agency with a duty to enforce its provision.” 71 P.S. § 732-205(a)(6). But whether these
provisions provide an enforcement connection strong enough to satisfy Young turns on a
state law question, something we are ill-equipped to resolve on this scant record. See
Lytle v. Griffith, 240 F.3d 404, 410 (4th Cir. 2001) (ruling that when the Young analysis
requires “a determination of disputed questions of fact and state law” the district court
should address the issue first). After all, district courts are “in the best position to address
in the first instance the competing questions of fact and state law necessary to resolve the
Eleventh Amendment issue.” Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 515 n.19
(1982). The district court should consider the defendants’ potential connection with a
more fully developed record and briefing. See Bolden, 953 F.2d at 812.
Not so with the Education Secretary. Nothing suggests the Secretary can bring
criminal charges. And because the Education Secretary cannot enforce the
confidentiality provision’s criminal penalties, he has no connection to the law’s
enforcement and is not a proper party in this lawsuit.
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IV.
That brings us to the district court’s denial of Doe’s preliminary injunction
motion. In ruling on such motions, courts consider: (1) the likelihood of success on the
merits; (2) irreparable harm if the injunction is denied; (3) harm to the nonmoving party;
and (4) the public interest. Kos, 369 F.3d at 708. Courts balance these factors once the
moving party “meets the threshold on the first two.” Reilly, 858 F.3d at 176. In First
Amendment cases, though, the first prong—likelihood of success—works differently: A
plaintiff need demonstrate only a colorable claim that his rights have been infringed
before the burden shifts to the government, which must justify the law under the relevant
level of scrutiny—either intermediate or strict (depending on whether the law is content
neutral or content based). Id. at 180 & n.5. If the government justifies the law, then the
preliminary injunction is improper because the plaintiff failed to show a likelihood of
success on the merits. Id.
Reilly is instructive on how this plays out. There, plaintiffs challenged a law
limiting their ability to protest in front of abortion clinics. Id. at 175-76. The district
court found plaintiffs did not demonstrate a likelihood of success on the merits, “and for
that reason alone it denied” the motion for a preliminary injunction. Id. at 176. The
district court went off course, though, when it failed to use the proper burden-shifting
analysis applicable to First Amendment cases. Id. Because First Amendment cases
require the government—through either strict or intermediate scrutiny—to justify speech-
regulating laws at trial, the burden also rests with the government at the preliminary
injunction stage. Id. at 180 n.5. So long as the plaintiff makes a colorable First
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Amendment claim, the government must justify its law. We vacated and remanded in
Reilly because the district court “did not provide a full analysis of whether to grant [the
injunction].” Id. at 176.
And also here. Indeed, the district court’s order denying the injunction considered
much less than what the Reilly court weighed. Here, the district court did not consider
the preliminary injunction factors at all. Instead, it denied plaintiff’s motion because
“exigent circumstances” no longer existed. In so ruling, the district court seemingly
believed that once the Commission ended its investigation, Doe no longer needed the
injunctive relief. But that is not so. Doe challenges the criminal prosecution statute,
which still looms over his head if he ever reveals information about the investigation.
When a district court’s order “does not adequately support the resolution of a
motion for preliminary injunction, we may vacate and remand for additional findings.”
Kos, 369 F.3d at 712. The Reilly court did so when the district court failed to apply the
proper test. Reilly, 858 F.3d at 180. True, we could instruct the district court to grant or
deny the injunction. Kos, 369 F.3d at 712. But here the record is underdeveloped, and it
would be difficult to resolve Doe’s motion at this stage. The district court should instead
hold a hearing and fully consider the parties’ positions.
We will vacate the district court’s order and remand with instructions for the
district court to hold a hearing and properly consider the preliminary injunction factors.
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