Philadelphia Vietnam Veterans v. Mayor Philadelphia

• Court: Court of Appeals for the Third Circuit
• Decided: March 23, 2022
• Docket: 21-1125
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 21-1125 _____________

PHILADELPHIA VIETNAM VETERANS MEMORIAL SOCIETY, Appellant v.

MAYOR PHILADELPHIA; PHILADELPHIA ACTING MANAGING DIRECTOR ______________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (Civil No. 2:20-cv-05418) District Judge: Honorable Nitza I. Quiñones Alejandro _____________

Argued October 26, 2021 ______________

Before: GREENAWAY, JR., PHIPPS, and COWEN, Circuit Judges

(Opinion Filed: March 23, 2022)

John M. Bloor [ARGUED] Jason P. Gosselin Faegre Drinker Biddle & Reath One Logan Square Suite 2000 Philadelphia, PA 19103

Counsel for Appellant

Jane L. Istvan [ARGUED] Craig R. Gottlieb Diana P. Cortes, City Solicitor City of Philadelphia Law Department 1515 Arch Street Philadelphia, PA 19102

Counsel for Appellees

______________

OPINION ______________

GREENAWAY, JR., Circuit Judge.

When evaluating a motion for a preliminary injunction, a gatekeeping issue to

resolve is whether the movant is more likely than not to suffer irreparable harm should

we deny its request. Here, Philadelphia Vietnam Veterans Memorial Society (“PVV”)

argues that it satisfies every requirement to secure a preliminary injunction against

Philadelphia’s Event Moratorium (“Moratorium”), including irreparable harm. We

disagree. For purposes of this opinion, we assume without deciding that PVV had

standing to bring suit and that the controversy has not become moot. Ultimately, we

affirm based on PVV’s failure to show irreparable harm.

I. BACKGROUND

Mayor Kenney of Philadelphia issued a Moratorium on July 14, 2020 stating that

the City would not be issuing permits for special events and public gatherings of 50 or

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. 2 more people on public property. It was posted on the “COVID-19 guidance and updates”

page of the City of Philadelphia’s website. J.A. 64-65. The Moratorium expressly

applied to parades but excluded “Demonstrations and First Amendment Protected

activities.” J.A. 65.

This Moratorium rendered PVV unable to host its annual parade, which honors

veterans and raises funds for its programming. Concerned that the Moratorium’s

distinction between parades and demonstrations constituted an impermissible content-

based distinction in violation of the First Amendment, PVV, through its counsel, wrote a

September 15, 2020 letter to the Philadelphia Solicitor asking him to retract the

Moratorium.

Diana Cortes, the Chair of the City’s Litigation Group, responded in a letter

“correct[ing]” PVV’s “misimpression” that the City would issue permits for

demonstrations but not parades, stating that the City was not granting permits for “any

protests, parades, demonstrations, festivals, etc.” J.A. 124–25 (emphasis in original). She

further advised that “the bottom line is that [PVV’s] members can gather on public

space,” and assured that the “City has not been forcibly dispersing any peaceful

gatherings in an effort to avoid confrontation.” J.A. 124–25.

Subsequently, the City issued three relevant Executive Orders. A September 21,

2020 “Supplemental Order” provided that the City “will not be enforcing such permitting

requirements for gatherings of 150 people or less.” J.A. 127–32. Aside from the 150- 3 person exception, “[a]ll other permitting and licensing requirements must be followed,”

and “failure to comply” “shall result” in “orders to cease operations and the imposition of

penalties, fines, license suspensions, and other remedies as provided for by law.” J.A.

130–31. Despite that warning, the Supplemental Order reiterated the City’s “policy to

avoid unnecessary confrontations” even for “gatherings of prohibited sizes.” J.A. 131.

Unassuaged by the letter, PVV commenced this action in the District Court on

October 30, 2020 against Mayor Kenney of Philadelphia and the Acting Managing

Director of the City of Philadelphia, Tumar Alexander. PVV sought a declaration that

the Moratorium violates the First and Fourteenth Amendments. PVV also filed a motion

for a preliminary injunction, pursuant to Federal Rule of Civil Procedure (“Rule”) 65,

seeking to prohibit the Mayor from enforcing the Moratorium or otherwise interfering

with the First Amendment rights of PVV or others similarly situated.

After commencement of the lawsuit, the City promulgated a November 16, 2020

Executive Order announcing an outdoor gathering limit of 2,000 people per 1,000 square

feet. Then on November 23, it issued an Executive Order expressly rescinding the

Moratorium and providing that the City would not be enforcing permitting requirements

for large public gatherings.

The District Court denied PVV’s motion for a preliminary injunction against the

Moratorium as moot. It reasoned that the Moratorium was an “unofficial policy

statement not subject to judicial review.” J.A. 23. It also stated that subsequent 4 Executive Orders “implicitly or explicitly rescinded the restrictions expressed in the

Moratorium.” J.A. 23. With respect to the November 23, 2020 Executive Order, the

District Court noted that PVV sought to enjoin it for the first time in its Reply Brief.

Nonetheless, the District Court addressed the argument, holding that PVV failed to show

that it would more likely than not suffer irreparable harm in the absence of the

preliminary injunction. PVV timely appealed the District Court’s denial of its motion for

a preliminary injunction against the Moratorium.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had subject matter jurisdiction over the underlying action

pursuant to 28 U.S.C. § 1331 because the claims arise under federal law, namely 42

U.S.C. § 1983 and the First and Fourteenth Amendments. This Court has jurisdiction

under 28 U.S.C. § 1292(a)(1) because interlocutory appeals from an order denying a

preliminary injunction are reviewable as of right.

“With respect to the denial of a motion for a preliminary injunction, we review

findings of fact for clear error, legal conclusions de novo, and the decision to grant or

deny the preliminary injunction for an abuse of discretion.” Holland v. Rosen, 895 F.3d

272, 285 (3d Cir. 2018). We exercise plenary review of mootness determinations.

Salovaara v. Jackson Nat’l Life Ins. Co., 246 F.3d 289, 295 (3d Cir. 2001).

5 III. DISCUSSION

We agree with the District Court’s denial of PVV’s motion for a preliminary

injunction against the Moratorium.1 PVV has not shown that it will more likely than not

suffer irreparable harm in the absence of a preliminary injunction.

A. Preliminary Injunction

Preliminary injunctive relief is an “extraordinary remedy” that “should be granted

only in limited circumstances.” Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d

Cir. 2004) (citations omitted) (quoting Am. Tel. & Tel. Co. v. Winback & Conserve

Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994)). In determining whether to grant a

request for injunctive relief, courts consider four factors. These factors are: (1) “whether

the movant has shown a reasonable probability of success on the merits”; (2) “whether

the movant will be irreparably injured by the denial of the relief”; (3) “whether granting

preliminary relief will result in even greater harm to the nonmoving party”; and (4)

“whether granting the preliminary relief will be in the public interest.” Crissman v.

Dover Downs Ent. Inc., 239 F.3d 357, 364 (3d Cir. 2001).

1 We will not consider PVV’s claim that the Moratorium is void for vagueness in violation of the Due Process Clause of the Fourteenth Amendment. At Oral Argument, PVV conceded that it waived this claim. Oral Argument at 0:36-0:40, Philadelphia Vietnam Veterans Memorial Society v. Mayor of Philadelphia, et al. (No. 21-1125), https://www2.ca3.uscourts.gov/oralargument/audio/21- 1125PhiladelphiaVietnamVeteransetalv.MayorPhiladelphiaetal.mp3. 6 Courts consider the latter two factors only if the movant “meet[s] the threshold for

the first two most critical factors: it must demonstrate that it can win on the merits (which

requires a showing significantly better than negligible . . .) and that it is more likely than

not to suffer irreparable harm in the absence of preliminary relief.” Reilly v. City of

Harrisburg, 858 F.3d 173, 179 (3d Cir. 3017) (citations omitted). To prove irreparable

harm, the movant must show that its injury is “immediate,” ECRI v. McGraw-Hill, Inc.,

809 F.2d 223, 226 (3d Cir. 1987), and not merely “speculative,” Adams v. Freedom

Forge Corp., 204 F.3d 475, 488 (3d Cir. 2000). In the First Amendment context, the

movant must show that the “purposeful unconstitutional [government] suppression of

speech” causes “a chilling effect on free expression.” Hohe v. Casey, 868 F.2d 69, 73 (3d

Cir. 1989) (alteration in original) (citations omitted) (quoting Goldie’s Bookstore v.

Superior Ct., 739 F.2d 466, 472 (9th Cir. 1984); Dombrowski v. Pfister, 380 U.S. 479,

487 (1965)). That chilling effect must result from “the direct penalization, as opposed to

incidental inhibition, of First Amendment rights[.]” Id. (citation omitted) (quoting Cate

v. Oldham, 707 F.2d 1176, 1188 (11th Cir. 1983)).

i. Irreparable Harm

Whether the cause is moot or whether PVV lacked standing at the start of this

action, the second prong of our analysis requires PVV to show that “it is more likely than

not to suffer irreparable harm in the absence of preliminary relief.” Reilly, 858 F.3d at

179. PVV cannot make that showing because there is not a sufficient chilling effect. 7 Importantly, the November 23, 2020 Executive Order expressly rescinded the

Moratorium providing that the City would not be enforcing permitting requirements for

large public gatherings. This means that PVV can now host its parade, which was the

impetus for the suit.

IV. CONCLUSION

For these reasons, we will affirm the order of the District Court based on PVV’s

failure to satisfy the requirements for a preliminary injunction—namely, irreparable

harm.