Christopher Quick v. Township of Bernards ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-2808
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CHRISTOPHER QUICK;
LORETTA QUICK,
Appellant
v.
TOWNSHIP OF BERNARDS;
BERNARDS TOWNSHIP COMMITTEE;
BERNARDS TOWNSHIP PLANNING BOARD
_____________
On Appeal from the United States District Court for the
District of New Jersey
(Civ. Action No. 3-17-cv-05595)
District Judge: Honorable Michael A. Shipp
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Submitted Under Third Circuit L.A.R. 34.1(a)
April 19, 2018
Before: GREENAWAY, JR., RENDELL, and FUENTES, Circuit Judges
(Opinion filed: May 30, 2018)
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OPINION ∗
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∗
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does
not constitute binding precedent.
FUENTES, Circuit Judge.
Christopher and Loretta Quick appeal the denial of their motion to preliminarily
enjoin a public hearing of the Bernards Township Planning Board (the “Board”) that
occurred on August 8, 2017. We will dismiss the appeal as moot.
I.
Because we write for the parties, we recount only the essential facts. The Quicks
live in Bernards Township, New Jersey. At the August 8 hearing, the Board weighed a
proposal to build a mosque near the Quicks’ home. The rules governing the August 8
hearing, which were outlined in a settlement agreement reached in a related lawsuit,
directed that “[n]o commentary regarding Islam or Muslims [would] be permitted” at the
hearing. 1 The settlement agreement further provided that “[i]n no event shall the
proceedings extend beyond one (1) single . . . hearing.” 2
The Quicks wanted to address the Board at the August 8 hearing. However, the
Quicks feared “adverse legal consequences” if they violated the above commentary
prohibition. 3 Based on these concerns, the Quicks moved to preliminarily enjoin the
hearing on First and Fourteenth Amendment grounds.
On August 8, 2017, the District Court held a hearing on the Quicks’ preliminary
injunction motion. At the end of the hearing, the District Court denied preliminary
injunctive relief, reasoning that the Quicks failed to show a likelihood of success on the
1
JA 57.
2
JA 55.
3
JA 31.
2
merits. Later that day, the August 8 hearing went forward and the Board approved
construction of a mosque near the Quicks’ home. This appeal followed.
II.
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. While the
denial of a preliminary injunction is normally appealable under 28 U.S.C. § 1292(a)(1),
“[i]f developments occur” that “prevent a court from being able to grant the requested
relief, the case must be dismissed as moot.” 4 In this regard, it is settled that “when the
event sought to be enjoined in a preliminary injunction has occurred, an appeal from the
order denying the preliminary injunction is moot.” 5 It is undisputed that the August 8
hearing that the Quicks sought to enjoin has already occurred. As such, their appeal is
moot and we lack jurisdiction to consider it. 6
In response, the Quicks contend that this case satisfies the “capable of repetition,
yet evading review” exception to mootness. This argument fails. That exception applies
only where “there is a reasonable expectation that the same complaining party will be
subject to the same action again.” 7 Here, the Quicks have no expectation—let alone a
reasonable one—that the Board will hold another public hearing because the settlement
agreement expressly provided that there would be only one hearing on the proposed site
4
Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698–99 (3d Cir. 1996).
5
Scattergood v. Perelman, 945 F.2d 618, 621 (3d Cir. 1991).
6
See Clark v. K-Mart Corp., 979 F.2d 965, 967 (3d Cir. 1992) (noting that “mootness is a
jurisdictional issue”).
7
Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016) (quoting
Spencer v. Kemna, 523 U.S. 1, 17 (1998) (brackets omitted)).
3
plan. Further, even if there is another hearing, it is not clear that the commentary
prohibition in question would apply. 8
III.
For the foregoing reasons, we dismiss the appeal as moot.
8
On appeal, the Quicks also ask that the Board’s decision at the August 8 hearing be
vacated. However, because they did not seek such relief from the District Court, that
request is waived. See In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 261 (3d Cir.
2009) (“Absent exceptional circumstances, this Court will not consider issues raised for
the first time on appeal.” (citation and quotation marks omitted)).
4