United States Court of Appeals For the First Circuit
No. 23-1389
SHAWN MCBREAIRTY,
Plaintiff, Appellant,
v.
HEATH MILLER, in his personal and official capacities; SCHOOL BOARD OF RSU 22,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]
Before
Barron, Chief Judge, Selya and Howard, Circuit Judges.
Marc J. Randazza, with whom Jay M. Wolman, Robert J. Morris, II and Randazza Legal Group PLLC were on the brief, for appellant Shawn McBreairty. Melissa A. Hewey, with whom Susan M. Weidner and Drummond Woodsum were on the brief, for appellees Heath Miller and School Board of RSU 22. J. Michael Connolly, with whom Consovoy McCarthy PLLC, Anastasia P. Boden and Laura A. Bondank were on the brief, for The Cato Institute, amicus curiae. Brett R. Nolan for Institute for Free Speech, amicus curiae. Jason Walta, with whom Benjamin K. Gant, Alice O'Brien, Philip A. Hostak and Nicole Carroll were on the brief, for the National Education Association and the Maine Education Association, amici curiae. February 21, 2024
- 2 - BARRON, Chief Judge. In this interlocutory appeal from
the District of Maine, Shawn McBreairty challenges the denial of
his request for a temporary restraining order and preliminary
injunction against a local school-board policy that he contends
violates the First Amendment by restricting him from saying certain
things at the board's public meetings. We vacate the decision
below because the record fails to show that McBreairty has standing
to seek the injunctive relief at issue.
I.
McBreairty filed the underlying suit in the United
States District Court for the District of Maine on March 24, 2023.
The defendants are the School Board of Regional School Unit 22 in
Maine and Heath Miller, who is the Board's chair.
The complaint set forth four counts, which sought,
respectively: (1) damages for a "[v]iolation of the First Amendment
to the United States Constitution: Retaliation"; (2) a declaratory
judgment and injunctive relief for a "[v]iolation of the First
Amendment to the United States Constitution"; (3) "relief" for a
"[v]iolation of the Article I Section 4 and Section 15 of the Maine
Constitution"; and (4) declaratory and injunctive relief for a
"[v]iolation of the Article I Section 4 and Section 15 of the Maine
Constitution."
The complaint alleged that the RSU 22 School Board holds
meetings at which members of the public may speak during a
- 3 - designated public-comment period. The complaint quoted from the
RSU 22 School Board's Public Participation Policy ("2020 Policy"),
which was attached as an exhibit.
The 2020 Policy states, in relevant part, that:
Confidential personnel information will not be shared in a public session. No complaints or allegations will be allowed at Board meetings concerning any person employed by the school system or against particular students. Personnel matters or complaints concerning student or staff issues will not be considered in a public meeting but will be referred through established policies and procedures.
Compl. ¶ 8 (emphasis in complaint). The 2020 Policy also states
that "[t]he Chair may interrupt or terminate an individual’s
statement when it is too lengthy, personally directed, abusive,
obscene, or irrelevant," and that "[t]he Chair has the authority
to stop any presentation that violates these guidelines or the
privacy rights of others." The 2020 Policy further provides that
"[a] speaker in violation of these rules may be required to leave
in order to permit the orderly consideration of the matters for
which the meeting was called" and that "the Chair may request law
enforcement assistance as necessary to restore order."
According to the complaint, McBreairty was not permitted
under the 2020 Policy "to even mention a teacher's name, unless it
is to praise that employee. Praise is allowed, but criticism is
not." In addition, the complaint alleged, McBreairty was stopped
from criticizing RSU 22 employees during his public comments at
- 4 - two separate RSU 22 School Board meetings that were held in early
2023.
The complaint alleged that the first of the two meetings
was held on February 15 and that McBreairty played an audio
recording of himself during the public-comment session of that
meeting "where he twice mentioned" the name of an RSU 22 teacher.
McBreairty attached as an exhibit to the complaint a video of the
meeting's public comment session during which he played the audio
recording.
The complaint alleged that the first time that
McBreairty mentioned the teacher's name during the audio recording
Miller "immediately warned Mr. McBreairty that 'we are not going
to mention names.'" The complaint alleged that the second time
McBreairty did so "Miller immediately ordered Mr. McBreairty to
stop his public comment and sit down. The School Board cut the
video feed, and the Hampden Police Department was contacted to
remove Mr. McBreairty from the school premises."
In addition to the video, the complaint also attached as
an exhibit the official report from the Hampden Police Department
of the call that was made to it to remove McBreairty from the Board
meeting. The report states that two officers responded and that
McBreairty agreed to leave the meeting with them but that he was
not arrested or charged with any crime.
With respect to the second of the two meetings, which
- 5 - was held on March 15, 2023, the complaint alleged as follows.
During the public comment session of that meeting, McBreairty
mentioned an RSU 22 teacher by name and "criticized her practices."
"Immediately after" McBreairty mentioned the teacher's name,
"Defendant Miller warned Mr. McBreairty stating, 'We are not going
to speak about school employees. This is your one warning.'"
McBreairty then also "criticized practices engaged in by" a
different teacher and "[i]mmediately after Mr. McBreairty
mentioned [the second teacher's] name, Defendant Miller ordered
Mr. McBreairty to stop speaking and sit down. The School Board
cut the video feed, and the police were contacted to remove Mr.
McBreairty from the school premises."
A video recording of the March 15 meeting that included
McBreairty's comments was attached as an exhibit to the complaint.
The complaint did not allege that McBreairty was arrested or
charged with any crime following his speech at the March 15
meeting.
On the same day that McBreairty filed the complaint, he
also filed an emergency motion for a temporary restraining order
("TRO") and preliminary injunction. The motion sought "the entry
of an injunction prior to the next RSU22 meeting on April 26,
2023." McBreairty did not attach any exhibits to this motion.
After receiving briefing from both sides, the District
Court held a hearing on McBreairty's motion on April 25, 2023. At
- 6 - this hearing, the only exhibit McBreairty submitted was a copy of
the public agenda for the RSU 22 School Board meeting that was to
take place on April 26, 2023.
The next day, the District Court denied the motion,
treating McBreairty's request for a TRO as merged with his request
for a preliminary injunction. See McBreairty v. Miller, No. 23-
00143, 2023 WL 3096787, at *12 (D. Me. Apr. 26, 2023). McBreairty
timely appealed that decision. See 28 U.S.C. § 1292(a)(1).
While this appeal was pending, the RSU 22 School Board
amended the 2020 Policy. We refer to the new policy as the
2023 Policy. It states, in relevant part, that:
3(c) Discussion of personnel matters is not permitted during the public comment period due to the privacy, confidentiality and due process rights of school unit employees. For purposes of this policy, "discussion of a personnel matter" means any discussion, whether positive or negative, of job performance or conduct of a school unit employee. (d) Discussion of matters involving individual students are also not permitted during the public comment period due to the privacy, confidentiality, and due process rights of the school unit’s students. (e) Any concerns about personnel matters and/or student matters should be directed to the Superintendent or another appropriate administrator outside of Board meetings so that they can be addressed through an alternative channel and in a manner consistent with privacy, confidentiality, and due process rights of the individuals involved. (f) The Board Chair will stop any public comment that is contrary to these rules.
According to a sworn declaration by Miller, which was
- 7 - attached as an exhibit to the defendants' briefing in opposition
to McBreairty's motion for injunctive relief, the RSU 22 School
Board initiated the process of amending its public participation
policy at the suggestion of one of the members of the board who
"went to a presentation concerning various board policies," and
"came back . . . with the recommendation that the District change
its policy . . . such that the prohibition on discussion of
personnel matters relates not only to negative discussion but also
positive discussion." According to Miller's declaration, at this
member's urging, the RSU 22 School Board "reached out to the Maine
School Management Association and learned that a new policy would
be distributed for all districts to consider very soon. On March
15, 2023, [the Board] obtained a copy of the newly drafted" model
public participation policy, which the RSU 22 School Board adopted,
with some amendments, on June 16, 2023.
II.
The parties recognize that there is a potential
jurisdictional obstacle to our reaching the merits of the dispute
underlying this appeal because of the change to the 2020 Policy
that was made in 2023. They agree, however, that this change does
not moot this appeal, although the defendants contend that the
change does moot certain aspects of the appeal, given that the
2020 Policy itself is no longer in place.
We need not take on the mootness issue because it turns
- 8 - out that there is also another potential jurisdictional obstacle
to our reaching the merits of their dispute that we similarly are
not free to ignore. See Steel Co. v. Citizens for a Better Env't,
523 U.S. 83, 95 (1998) ("Every federal appellate court has a
special obligation to satisfy itself not only of its own
jurisdiction, but also that of the lower courts in a cause under
review, even though the parties are prepared to concede it."
(cleaned up)). And, as we will explain, this jurisdictional
obstacle, which concerns McBreairty's standing under Article III
of the U.S. Constitution to seek the injunctive relief at issue,
is an insurmountable one, even on de novo review. See Ramírez v.
Sánchez Ramos, 438 F.3d 92, 97 (1st Cir. 2006). We thus begin and
end our analysis with the standing question, which the parties did
not address in their briefing to us but which they have addressed
at our request in post-argument submissions. See Sinochem Int'l
Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431 (2007)
(holding that there is no required sequencing of jurisdictional
issues).
A.
Article III only permits federal courts to hear "Cases"
or "Controversies." See U.S. Const. art. III, § 2. To establish
that there is a case or controversy, a plaintiff must have standing
to obtain the relief sought. See Lujan v. Defs. of Wildlife, 504
U.S. 555, 560 (1992). For there to be standing, the plaintiff
- 9 - must have suffered an injury in fact, that is fairly traceable to
the challenged conduct, and that may be redressed by the requested
relief. See id. at 560-61. The component of Article III standing
that is in play here concerns injury in fact.
We have held that a plaintiff who, like McBreairty, also
was seeking injunctive relief from the enforcement of a limitation
on speech that allegedly violated the First Amendment lacked
Article III standing because she "never stated an intention to
engage in any activity that . . . fall[s] within the [challenged
rule]." Ramírez, 438 F.3d at 99; see also Babbitt v. United Farm
Workers Nat'l Union, 442 U.S. 289, 297-98 (1979) (requiring a
plaintiff seeking injunctive relief under the First Amendment to
"allege[] an intention to engage in a course of conduct arguably
affected with a constitutional interest, but proscribed by [the
policy]," and that there "exists a credible threat of
prosecution").1 To be sure, one might wonder why a plaintiff who
seeks an injunction for a claimed First Amendment violation would
seek such relief absent a desire to engage in the future conduct
that the injunction would make possible. For that reason, one
1 A plaintiff can also assert First Amendment standing to seek injunctive relief by plausibly alleging that he "is chilled from exercising [his] right to free expression or forgoes expression in order to avoid enforcement consequences." See New Hampshire Right to Life Pol. Action Comm. v. Gardner, 99 F.3d 8, 13 (1st Cir. 1996). Neither the District Court nor McBreairty argue that he has adequately alleged standing on this theory, and we see no basis in the record for concluding that he did. - 10 - might wonder whether there is any sense in requiring that a
plaintiff seeking that relief for such a violation manifest
somewhere in the record an intent to engage in the speech on a
going forward basis. Why not simply infer that intention from the
request for the relief itself?
But Ramírez rightly recognizes the problem with our
relying on such surmise. Article III's "Case" or "Controversy"
requirement exists to ensure that we resolve only concrete, live
disputes and so do not end up rendering advisory opinions in what
are merely hypothetical disputes. And, as Ramírez recognizes, we
can be sure that a request for injunctive relief to permit future
speech presents a dispute of the former rather than latter kind
only if the one who seeks that relief has made manifest their
intention to engage in the speech in the future. See 438 F.3d at
98-99. For, otherwise, even plaintiffs with no such intention
could obtain a First Amendment ruling from a federal court merely
by asking for an injunction.
Accordingly, for McBreairty to have standing to seek the
injunctive relief at issue here, he must have made the requisite
showing for this stage of the litigation that he has an intention
to engage in the speech in question at a future meeting of the RSU
22 School Board.2 As we will explain, he has not done so.
2 We assume, favorably to McBreairty, that a plaintiff's standing to seek a preliminary injunction "should be judged on the - 11 - 1.
In a Rule 28(j) letter that McBreairty submitted after
the issue of standing had been raised at oral argument on appeal,
McBreairty argues that the allegations in his complaint
sufficiently show that he has the requisite intention. He rests
this contention in part on the fact that his complaint uses the
present tense in setting forth certain allegations regarding the
conduct that he is challenging, as he maintains that this usage
impliedly reveals that he is alleging an intention to speak in the
future and not merely that he has so spoken in the past.
The complaint does use the present tense in setting forth
the allegations at various points, such as in passages that state
"McBreairty is not permitted to even mention a teacher's name,"
Compl. ¶ 9, or "Defendants' conduct of shutting down Mr.
McBreairty's speech and contacting the police to remove him from
RSU22 school premises . . . is unconstitutional and violates his
sufficiency of the allegations of the complaint, with any preliminary hearing evidence favorable to the plaintiffs on standing treated as additional allegations of the complaint," see Church v. City of Huntsville, 30 F.3d 1332, 1336 (11th Cir. 1994), rather than by the higher standard that would be required for a plaintiff to show standing at the summary-judgment stage, see Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 912 (D.C. Cir. 2015) (requiring this higher showing to establish standing to seek a preliminary injunction); see also Lujan, 504 U.S. at 561 ("[E]ach element [of the standing inquiry] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation."). - 12 - First Amendment rights," Compl. ¶ 23. But the former passage
appears only in the "Factual Background" section of the complaint,
while the latter passage appears only in the count that seeks
relief for retaliation. And, consistent with where each passage
appears in the complaint, each merely provides a description of
past events and makes no representations about what McBreairty
intends to do in the future.
Meanwhile, the present-tense passages that appear in the
only First Amendment-based claim for which McBreairty seeks
injunctive relief read merely as statements about the rule's
continued operation, see, e.g., Compl. ¶ 31 ("Rule 2 is a facially
unconstitutional viewpoint-based restriction that prohibits any
comments about RSU22 employees or students that the Chair deems is
negative."), or that refer to a past occurrence, see, e.g., Compl.
¶ 32 ("Other members of the public are permitted to address their
opinions about teachers while Mr. McBreairty's speech is silenced,
and he is ordered to leave."), without referring to what McBreairty
intends to do. Thus, those passages also fail to provide a basis
on which we could conclude that McBreairty's complaint alleges
that he has the requisite intention.
McBreairty does include a present-tense allegation in
Count III of the complaint, which concerns only his state
constitutional claim. There, the complaint states that McBreairty
"reasonably fears imminent injury." Compl. ¶ 36. But that
- 13 - allegation does little to enable McBreairty to show what he must
for present purposes, as it merely sets forth a legal conclusion,
not a factual representation about his future intentions.3 See
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) ("While legal
conclusions can provide the framework of a complaint, they must be
supported by factual allegations.").
Of course, the complaint also contains a request for
injunctive relief. But, as we explained above, that request
cannot, in and of itself, suffice to show McBreairty has stated
the intention to engage in the speech for which he is requesting
injunctive relief. Otherwise, a plaintiff with no intention of
speaking in the future at all could call upon a federal court to
decide a constitutional question merely by, in effect, asking it
to do so, thereby securing the very kind of advisory opinion in a
hypothetical dispute that Article III exists to prevent. See
Babbitt, 442 U.S. at 297. Indeed, the plaintiff in Ramírez
requested injunctive relief and yet we held there was no standing
because she did not allege "an intention to engage in [an]
activity" that would subject her to sanctions under the challenged
law. 438 F.3d at 99.
Nor is this allegation sufficient to show that McBreairty's 3
future speech has been chilled, see Gardner, 99 F.3d at 13, which, in any event, is not a theory of standing he presses to us or pressed before the District Court. - 14 - 2.
Notwithstanding the limitations of the complaint's
allegations, McBreairty contends in his 28(j) letter that
precedent shows that we should infer the required intention from
those allegations.
His strongest case in that regard is a district court
ruling from within our Circuit, Frese v. MacDonald, 425 F. Supp.
3d 64 (D.N.H. 2019), which held that the plaintiff there had
adequately alleged the necessary intention because the complaint
included an allegation that read: "[B]ased on his two prior arrests
under the statute, Mr. Frese reasonably fears future prosecution
under RSA 644:11 for his speech. He especially fears that he will
be arrested and/or prosecuted for speech criticizing law
enforcement and other public officials." Compl. ¶ 27, Frese v.
MacDonald, 425 F. Supp. 3d 64 (D.N.H. 2019) (No. 18-1180). The
case then later came to us on appeal after the district court
denied the defendant's motion to dismiss the plaintiff's amended
complaint, see Frese v. MacDonald (Frese II), 512 F. Supp. 3d 273
(D.N.H. 2021), aff'd sub nom. Frese v. Formella (Frese III), 53
F.4th 1 (1st Cir. 2022), and we affirmed while noting that the
parties had not addressed standing but that we saw "no error" in
the district court's standing analysis, see Frese III, 53 F.4th at
5 n.2.
McBreairty's complaint, however, does not itself contain
- 15 - allegations regarding his future plans of even the sort that, as
we have seen, the plaintiff in Frese had made. McBreairty's most
analogous allegation, which we described above, appears only in an
allegation that is pertinent to one of his state law claims and
reads: "Plaintiff has been injured, or reasonably fears imminent
injury, by these constitutional violations, and Plaintiff is
entitled to relief." Compl. ¶ 36. That allegation does not refer,
however, to the type of speech that McBreairty would engage in and
instead is a purely conclusory legal assertion.
The other cases that McBreairty cites are of even less
help to him. The complaint underlying the Sixth Circuit decision
that McBreairty cites, Kiser v. Reitz, 765 F.3d 601 (6th Cir.
2014), contained an express allegation that the plaintiff had
engaged in the prohibited speech before "and that he intends to do
so in the future," id. at 608, while the out-of-circuit district
court cases McBreairty cites are similar, see Messina v. City of
Fort Lauderdale, 546 F. Supp. 3d 1227, 1233 (S.D. Fla. 2021)
(plaintiff alleged, among other things, that he "panhandles a few
times a week and would like to do so more often, but he doesn't
because of his fear of arrest"); Foothills Christian Church v.
Johnson, No. 22-0950, 2023 WL 4042580, at *16 (S.D. Cal. June 15,
2023) ("Plaintiffs allege they plan to open and operate preschools,
which indisputably will be subject to the Act.").
Perhaps in some case a request for injunctive relief
- 16 - could combine with the allegations in a complaint, which on their
own would not be enough to make out the requisite intention by
implication, to nudge the allegations across the line. Perhaps
Frese may be such a case. But McBreairty's complaint is simply
too bare to warrant that conclusion, as, for the reasons we have
explained, it does not even allege what the complaint in Frese
did.
3.
In denying McBreairty's motion for a temporary
restraining order and preliminary injunction, the District Court
did note that "McBreairty has expressed that he would like to speak
at the next School Board meeting . . . scheduled for April 26,
2023." McBreairty, 2023 WL 3096787, at *3. But the sole support
the District Court offered for this statement was the first page
of McBreairty's memorandum in support of his motion, which stated
that he "ha[d] been removed from two prior meetings, under threat
of arrest, for criticizing RSU22 employees -- and he intend[ed] to
do so again at the next meeting." An allegation in a pleading,
however, is not itself evidence that we may consider for these
purposes. Barrett v. Lombardi, 239 F.3d 23, 27 (1st Cir. 2001).
Indeed, McBreairty does not rely on this statement to contend that
he has shown what Ramírez requires.
B.
In sum, McBreairty has failed to make the showing that,
- 17 - under Ramírez, he must make to establish that he has standing to
seek the injunctive relief at issue. Accordingly, he cannot show
that this dispute over the denial of his request for that relief
presents a "Case" or "Controversy" within the meaning of Article
III, such that it is one over which a federal court has
jurisdiction.
III.
For the foregoing reasons we vacate the decision below
and remand to the District Court. No costs are awarded.
- 18 -