USCA4 Appeal: 22-1682 Doc: 14 Filed: 07/21/2022 Pg: 1 of 8
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-2180
PAUL GOLDMAN,
Plaintiff – Appellee,
v.
ROBERT H. BRINK, Chairman of the State Board of Elections, in his official capacity; JAMILAH D. LECRUISE, Secretary of the State Board of Elections, in her official capacity; JOHN O’BANNON, Vice Chair of the State Board of Elections, in his official capacity; SUSAN BEALS, Commissioner of the Virginia Department of Elections, in her official capacity,
Defendants – Appellants,
and
VIRGINIA STATE BOARD OF ELECTIONS; GLENN YOUNGKIN, Governor of Virginia, in his official capacity,
Defendants.
Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. David J. Novak, District Judge. (3:21-cv-00420-DJN)
No. 22-1682
PAUL GOLDMAN,
Plaintiff – Appellant, USCA4 Appeal: 22-1682 Doc: 14 Filed: 07/21/2022 Pg: 2 of 8
v.
ROBERT H. BRINK, Chairman of the State Board of Elections, in his official capacity; JAMILAH D. LECRUISE, Secretary of the State Board of Elections, in her official capacity; JOHN O’BANNON, Vice Chair of the State Board of Elections, in his official capacity; SUSAN BEALS, Commissioner of the Virginia Department of Elections, in her official capacity,
Defendants – Appellees,
and
VIRGINIA STATE BOARD OF ELECTIONS; GLENN YOUNGKIN, Governor of Virginia, in his official capacity,
Defendants.
Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Stephanie D. Thacker, Circuit Judge; David J. Novak, District Judge; and Raymond A. Jackson, Senior District Judge. (3:21-cv-00420-DJN-RAJ-SDT)
Argued: March 8, 2022 Decided: July 21, 2022
Before KING, WYNN, and RUSHING, Circuit Judges.
No. 21-2180 dismissed and vacated and No. 22-1682 affirmed as modified by published opinion. Judge King wrote the opinion, in which Judge Wynn and Judge Rushing joined.
ARGUED: Andrew Nathan Ferguson, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellants. Paul Goldman, Richmond, Virginia, Appellee Pro Se, for Appellee. ON BRIEF: Mark R. Herring, Attorney General, Jason S. Miyares, Attorney General, Charles H. Slemp, III, Chief Deputy Attorney General, Erin B. Ashwell, Chief Deputy Attorney General, Donald D. Anderson, Deputy Attorney General, Steven G. Popps, Deputy Attorney General, Michelle S. Kallen, Solicitor General, Andrew N. Ferguson, Solicitor General, Erika L. Maley, Principal Deputy Attorney General, A. Anne Lloyd, Deputy Solicitor General, Brittany M. Jones, Deputy Solicitor General, Kevin 2 USCA4 Appeal: 22-1682 Doc: 14 Filed: 07/21/2022 Pg: 3 of 8
M. Gallagher, Deputy Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellants.
3 USCA4 Appeal: 22-1682 Doc: 14 Filed: 07/21/2022 Pg: 4 of 8
KING, Circuit Judge:
Pro se plaintiff Paul Goldman seeks to pursue this civil action in the Eastern District
of Virginia against several Commonwealth officials, alleging that the Old Dominion’s
2021 House of Delegates election contravened the federal and state constitutions. More
specifically, Goldman alleges that Virginia was constitutionally required to use 2020 U.S.
Census data to draw the legislative districts for the 2021 House of Delegates election.
On October 12, 2021, the district court dismissed Goldman’s claims against the
Governor of Virginia and the State Board of Elections on grounds of Eleventh Amendment
immunity. See Goldman v. Brink, No. 3:21-cv-00420 (E.D. Va. Oct. 12, 2021), ECF Nos.
40 & 41 (the “Immunity Ruling”). In the Immunity Ruling, the court declined to similarly
dismiss Goldman’s federal constitutional claim against four of the Board’s members.
The next day, on October 13, 2021, a three-judge district court was appointed by the
Chief Judge of this Court, pursuant to 28 U.S.C. § 2284, to resolve Goldman’s federal
constitutional claim against the Board members. Five days later, on October 18, 2021, the
Board members noticed an interlocutory appeal to this Court (the “Commonwealth’s
Appeal”) from the Immunity Ruling, insofar as the single-judge district court declined to
dismiss Goldman’s federal constitutional claim. The Commonwealth’s Appeal was filed
as No. 21-2180, and oral argument thereon was conducted in Richmond on March 8, 2022.
We thereafter remanded the proceedings “to the district court for it to determine — in the
first instance — whether Goldman possesses Article III standing to sue.” See Goldman v.
Brink, No. 21-2180, at 3 (4th Cir. Mar. 15, 2022), ECF No. 55.
4 USCA4 Appeal: 22-1682 Doc: 14 Filed: 07/21/2022 Pg: 5 of 8
On remand, the three-judge district court, on June 6, 2022, dismissed the entirety of
Goldman’s complaint, ruling that he lacks Article III standing to sue. See Goldman v.
Brink, No. 3:21-cv-00420 (E.D. Va. June 6, 2022), ECF No. 89 (the “Standing to Sue
Ruling”). Goldman then noticed an appeal to this Court (the “Goldman Appeal”) from the
Standing to Sue Ruling. The Goldman Appeal was filed as No. 22-1682, and we
consolidated that appeal with the Commonwealth’s Appeal in No. 21-2180. 1
On June 29, 2022, we requested the parties to brief the question of our jurisdiction
to review the Standing to Sue Ruling that is challenged in the Goldman Appeal. Upon
consideration of those submissions and the pertinent authorities, we are satisfied that we
possess jurisdiction to review the Standing to Sue Ruling. And given the time-sensitive
nature of these proceedings, we are content to render our opinion and resolve both the
Goldman Appeal and the Commonwealth’s Appeal without further briefing or oral
argument.
Put succinctly with respect to our jurisdiction in the Goldman Appeal, the Supreme
Court has “unanimously held that jurisdiction [for] an appeal from an order of a three-judge
court dismissing a complaint for lack of standing [is] vested in the court of appeals.” See
Jagnandan v. Giles, 538 F.2d 1166, 1170 (5th Cir. 1976) (citing Gonzalez v. Automatic
Emp. Credit Union, 419 U.S. 90, 100 (1974)); see also MTM, Inc. v. Baxley, 420 U.S. 799,
804 (1975) (per curiam) (observing that “a direct appeal will lie to [the Supreme Court] . . .
1 We recognize that one of our colleagues is a duly-appointed member of the three- judge district court that rendered the Standing to Sue Ruling. We have assessed that unique circumstance and are satisfied to serve on this appellate panel. 5 USCA4 Appeal: 22-1682 Doc: 14 Filed: 07/21/2022 Pg: 6 of 8
from the order of a three-judge federal court denying interlocutory or permanent injunctive
relief only where such order rests upon resolution of the merits of the constitutional claim
presented below”). Because the Standing to Sue Ruling has not resolved the merits of any
of Goldman’s constitutional claims, we possess jurisdiction in the Goldman Appeal.
By its Standing to Sue Ruling, the three-judge district court properly ruled that
Goldman does not possess the Article III standing to sue that is required to pursue this civil
action.
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USCA4 Appeal: 22-1682 Doc: 14 Filed: 07/21/2022 Pg: 1 of 8
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-2180
PAUL GOLDMAN,
Plaintiff – Appellee,
v.
ROBERT H. BRINK, Chairman of the State Board of Elections, in his official capacity; JAMILAH D. LECRUISE, Secretary of the State Board of Elections, in her official capacity; JOHN O’BANNON, Vice Chair of the State Board of Elections, in his official capacity; SUSAN BEALS, Commissioner of the Virginia Department of Elections, in her official capacity,
Defendants – Appellants,
and
VIRGINIA STATE BOARD OF ELECTIONS; GLENN YOUNGKIN, Governor of Virginia, in his official capacity,
Defendants.
Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. David J. Novak, District Judge. (3:21-cv-00420-DJN)
No. 22-1682
PAUL GOLDMAN,
Plaintiff – Appellant, USCA4 Appeal: 22-1682 Doc: 14 Filed: 07/21/2022 Pg: 2 of 8
v.
ROBERT H. BRINK, Chairman of the State Board of Elections, in his official capacity; JAMILAH D. LECRUISE, Secretary of the State Board of Elections, in her official capacity; JOHN O’BANNON, Vice Chair of the State Board of Elections, in his official capacity; SUSAN BEALS, Commissioner of the Virginia Department of Elections, in her official capacity,
Defendants – Appellees,
and
VIRGINIA STATE BOARD OF ELECTIONS; GLENN YOUNGKIN, Governor of Virginia, in his official capacity,
Defendants.
Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Stephanie D. Thacker, Circuit Judge; David J. Novak, District Judge; and Raymond A. Jackson, Senior District Judge. (3:21-cv-00420-DJN-RAJ-SDT)
Argued: March 8, 2022 Decided: July 21, 2022
Before KING, WYNN, and RUSHING, Circuit Judges.
No. 21-2180 dismissed and vacated and No. 22-1682 affirmed as modified by published opinion. Judge King wrote the opinion, in which Judge Wynn and Judge Rushing joined.
ARGUED: Andrew Nathan Ferguson, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellants. Paul Goldman, Richmond, Virginia, Appellee Pro Se, for Appellee. ON BRIEF: Mark R. Herring, Attorney General, Jason S. Miyares, Attorney General, Charles H. Slemp, III, Chief Deputy Attorney General, Erin B. Ashwell, Chief Deputy Attorney General, Donald D. Anderson, Deputy Attorney General, Steven G. Popps, Deputy Attorney General, Michelle S. Kallen, Solicitor General, Andrew N. Ferguson, Solicitor General, Erika L. Maley, Principal Deputy Attorney General, A. Anne Lloyd, Deputy Solicitor General, Brittany M. Jones, Deputy Solicitor General, Kevin 2 USCA4 Appeal: 22-1682 Doc: 14 Filed: 07/21/2022 Pg: 3 of 8
M. Gallagher, Deputy Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellants.
3 USCA4 Appeal: 22-1682 Doc: 14 Filed: 07/21/2022 Pg: 4 of 8
KING, Circuit Judge:
Pro se plaintiff Paul Goldman seeks to pursue this civil action in the Eastern District
of Virginia against several Commonwealth officials, alleging that the Old Dominion’s
2021 House of Delegates election contravened the federal and state constitutions. More
specifically, Goldman alleges that Virginia was constitutionally required to use 2020 U.S.
Census data to draw the legislative districts for the 2021 House of Delegates election.
On October 12, 2021, the district court dismissed Goldman’s claims against the
Governor of Virginia and the State Board of Elections on grounds of Eleventh Amendment
immunity. See Goldman v. Brink, No. 3:21-cv-00420 (E.D. Va. Oct. 12, 2021), ECF Nos.
40 & 41 (the “Immunity Ruling”). In the Immunity Ruling, the court declined to similarly
dismiss Goldman’s federal constitutional claim against four of the Board’s members.
The next day, on October 13, 2021, a three-judge district court was appointed by the
Chief Judge of this Court, pursuant to 28 U.S.C. § 2284, to resolve Goldman’s federal
constitutional claim against the Board members. Five days later, on October 18, 2021, the
Board members noticed an interlocutory appeal to this Court (the “Commonwealth’s
Appeal”) from the Immunity Ruling, insofar as the single-judge district court declined to
dismiss Goldman’s federal constitutional claim. The Commonwealth’s Appeal was filed
as No. 21-2180, and oral argument thereon was conducted in Richmond on March 8, 2022.
We thereafter remanded the proceedings “to the district court for it to determine — in the
first instance — whether Goldman possesses Article III standing to sue.” See Goldman v.
Brink, No. 21-2180, at 3 (4th Cir. Mar. 15, 2022), ECF No. 55.
4 USCA4 Appeal: 22-1682 Doc: 14 Filed: 07/21/2022 Pg: 5 of 8
On remand, the three-judge district court, on June 6, 2022, dismissed the entirety of
Goldman’s complaint, ruling that he lacks Article III standing to sue. See Goldman v.
Brink, No. 3:21-cv-00420 (E.D. Va. June 6, 2022), ECF No. 89 (the “Standing to Sue
Ruling”). Goldman then noticed an appeal to this Court (the “Goldman Appeal”) from the
Standing to Sue Ruling. The Goldman Appeal was filed as No. 22-1682, and we
consolidated that appeal with the Commonwealth’s Appeal in No. 21-2180. 1
On June 29, 2022, we requested the parties to brief the question of our jurisdiction
to review the Standing to Sue Ruling that is challenged in the Goldman Appeal. Upon
consideration of those submissions and the pertinent authorities, we are satisfied that we
possess jurisdiction to review the Standing to Sue Ruling. And given the time-sensitive
nature of these proceedings, we are content to render our opinion and resolve both the
Goldman Appeal and the Commonwealth’s Appeal without further briefing or oral
argument.
Put succinctly with respect to our jurisdiction in the Goldman Appeal, the Supreme
Court has “unanimously held that jurisdiction [for] an appeal from an order of a three-judge
court dismissing a complaint for lack of standing [is] vested in the court of appeals.” See
Jagnandan v. Giles, 538 F.2d 1166, 1170 (5th Cir. 1976) (citing Gonzalez v. Automatic
Emp. Credit Union, 419 U.S. 90, 100 (1974)); see also MTM, Inc. v. Baxley, 420 U.S. 799,
804 (1975) (per curiam) (observing that “a direct appeal will lie to [the Supreme Court] . . .
1 We recognize that one of our colleagues is a duly-appointed member of the three- judge district court that rendered the Standing to Sue Ruling. We have assessed that unique circumstance and are satisfied to serve on this appellate panel. 5 USCA4 Appeal: 22-1682 Doc: 14 Filed: 07/21/2022 Pg: 6 of 8
from the order of a three-judge federal court denying interlocutory or permanent injunctive
relief only where such order rests upon resolution of the merits of the constitutional claim
presented below”). Because the Standing to Sue Ruling has not resolved the merits of any
of Goldman’s constitutional claims, we possess jurisdiction in the Goldman Appeal.
By its Standing to Sue Ruling, the three-judge district court properly ruled that
Goldman does not possess the Article III standing to sue that is required to pursue this civil
action. In making that determination, we agree with and adopt the well-crafted and
reasoned analysis of the Standing to Sue Ruling. Simply put, Goldman cannot satisfy
Article III’s injury in fact requirement, either as a voter or as a candidate for public office.
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). As the Standing to Sue
Ruling recognized, Goldman has not suffered “a particularized injury in fact that would
furnish him [with] standing to pursue this case as a voter,” in that he does not reside in an
underrepresented House of Delegates district. See Standing to Sue Ruling 23. The
Standing to Sue Ruling also explained that Goldman — as a potential candidate for public
office in Virginia — has failed to show that the defendants’ “actions have harmed [his]
chances of winning” an election. Id. at 24. Moreover, Goldman did not demonstrate “that
he intends or intended to run for the House of Delegates.” Id. at 26.
Although we are satisfied that Goldman has not alleged facts sufficient to establish
Article III standing to sue, we also recognize that the dismissal of his civil action should
have been without prejudice. As our precedent establishes, “[a] dismissal for lack of
standing — or any other defect in subject matter jurisdiction — must be one without
prejudice, because a court that lacks jurisdiction has no power to adjudicate and dispose of
6 USCA4 Appeal: 22-1682 Doc: 14 Filed: 07/21/2022 Pg: 7 of 8
a claim on the merits.” See S. Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand
at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013) (citing Fed. R. Civ. P. 41(b)).
Therefore, we modify the judgment of the three-judge district court to reflect that its
dismissal of Goldman’s civil action is without prejudice. See Ali v. Hogan, 26 F.4th 587,
600 (4th Cir. 2022).
Being satisfied with respect to the Goldman Appeal that Goldman does not possess
Article III standing to sue, we need not review the Immunity Ruling or address the issues
raised in the Commonwealth’s Appeal. Rather, we are obliged to dismiss the
Commonwealth’s Appeal as moot and vacate the unreviewed Immunity Ruling being
appealed therein. See Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 161-62 (4th
Cir. 2010) (recognizing that dismissal of an appeal and vacatur of a challenged ruling are
warranted if addressing the issues “would result in an advisory opinion being rendered on
moot issues”). 2
2 We also dispose herein of motions interposed by Goldman that remain pending. Prior to our remand in the Commonwealth’s Appeal, Goldman filed a motion to dismiss that appeal and remand to the three-judge district court for a merits ruling on his federal constitutional claim against the Board members. Goldman also filed separate motions to supplement the record on appeal and to allow him to cite certain cases during oral argument. We hereby deny those three motions as moot.
After noting the Goldman Appeal, Goldman moved, inter alia, for an expedited hearing. We grant that motion to the extent Goldman was seeking an appellate decision without further briefing, but we otherwise deny it. 7 USCA4 Appeal: 22-1682 Doc: 14 Filed: 07/21/2022 Pg: 8 of 8
In the circumstances presented, we sua sponte direct the Clerk to forthwith issue the
mandate resolving these consolidated appeals.
No. 21-2180 — DISMISSED AND VACATED
No. 22-1682 — AFFIRMED AS MODIFIED