Barna v. Board of School Directors of the Panther Valley School District ( 2017 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-3904
____________
JOHN BARNA,
Appellant
v.
BOARD OF SCHOOL DIRECTORS OF THE
PANTHER VALLEY SCHOOL DISTRICT,
also known as Panther Valley Board of Education;
ANTHONY PONDISH; KOREEN NALESNIK; JEFFREY
MARKOVICH; DAVID HILES; WILLIAM HUNSICKER;
ANTHONY DEMARCO; DONNA TRIMMEL
____________
Appeal from the United States District Court for the
Middle District of Pennsylvania
(D.C. Civil Action No. 3-12–cv–00638)
District Judge: Honorable Robert D. Mariani
____________
Argued: September 14, 2016
Before: CHAGARES, GREENAWAY, JR., and
RESTREPO, Circuit Judges
____________
(Opinion Filed: December 7, 2017)
Gary D. Marchalk, Esq.
Law Offices of Gary D. Marchalk, LLC
204 East Broad Street
Tamaqua, PA 18252
Jonathan P. Phillips, Esq. [ARGUED]
606 Country Hill Road
Orwigsburg, PA 17961
Counsel for Appellant
Thomas A. Specht, Esq. [ARGUED]
Marshall Dennehey Warner Coleman & Goggin
P.O. Box 3118
Scranton, PA 18505
Counsel for Appellees
____________
OPINION
____________
CHAGARES, Circuit Judge.
Plaintiff John Barna filed a lawsuit under 42 U.S.C. §
1983 alleging that the Panther Valley School Board (“School
Board” or “Board”) and several of its officials violated his First
Amendment rights by categorically banning him from
2
attending Board meetings after he was threatening and
disruptive on several occasions. The Board and the individual
officials moved for summary judgment. The District Court
granted the motion, holding that although the Board’s ban
violated Barna’s constitutional rights, qualified immunity
shielded both the Board and the officials from liability for
damages. For the reasons set forth below, we will affirm in
part, vacate in part, and remand for further proceedings.
I.
The relevant facts are not in dispute. Barna attended a
School Board meeting on April 8, 2010, at which he expressed
concern about a particular school district contract. Barna
mentioned that he and his friends were confused by the
contract, which they perceived as a waste of public resources.
School Board President Jeffrey Markovich responded by
suggesting that Barna bring his friends to the next meeting.
Barna replied: “You wouldn’t like that. Some of my friends
have guns.” Joint Appendix (“J.A.”) 129. Barna asserted at
his deposition that this remark was a joke. J.A. 129.
The Board held another meeting on April 22, 2010.
Before the meeting began, Markovich told Barna: “Since you
say that you have friends with guns, I’m going to have to ask
you to leave.” J.A. 130. Markovich reiterated a similar
message once the meeting began. While exiting the meeting,
Barna stated: “Don’t laugh. I may have to come after all of
yous.” J.A. 130. Some meeting attendees construed the
remark as a threat.
Barna alleges that after leaving the meeting room,
David Hiles, a Board member standing in the hallway, made
3
threatening gestures toward him. A security guard restrained
Barna as he attempted to follow Hiles. Barna then returned to
the Board room and stated that Hiles “just threatened [his]
life.” J.A. 131.
On April 27, 2010, Rosemary Porembo, the school
district superintendent, informed Barna by letter that he could
attend Board meetings but would be banned from future
attendance if he engaged in any threatening or disorderly
conduct. Barna subsequently attended several Board meetings
without incident.
Barna attended another Board meeting on October 12,
2011. Barna raised his voice and became confrontational after
being denied the opportunity to ask questions. Markovich
stood up at some point, which Barna apparently interpreted as
an invitation to fight. Barna stated: “Do you want to fight?
Let’s go.” J.A. 133. Barna admitted that during the meeting
he “blew [his] top” and was “just mad.” J.A. 133.
The Board convened again the next day, at which point
Barna apologized for his conduct to some, but not all, of the
Board members. During a brief recess at the meeting, Barna
uttered “[s]on of a bitch” within earshot of meeting attendees,
including some children. J.A. 135.
On October 18, 2011, the Board solicitor, Robert
Yurchak, sent Barna a letter barring him from attending all
Board meetings or school extracurricular activities because his
conduct had become “intolerable, threatening and obnoxious”
and because he was “interfering with the function of the School
Board.” J.A. 292. Barna was also banned from “be[ing]
physically present” on the Panther Valley campus. J.A. 292.
4
Barna was, however, permitted to submit “reasonable and
responsible” written questions to the Board, which would be
answered in a timely manner. J.A. 292. A Board member
testified that he did not believe that there was any other way of
“correct[ing] the problems that the Board had with Mr. Barna.”
J.A. 249.
Barna did not write to the Board with any questions or
comments after receiving the letter, although he did request
and obtain audiotapes of Board meetings. J.A. 136. When
asked why he had made no additional requests, Barna testified
that he “gave up” because he was no longer permitted to attend
Board meetings. J.A. 136.
Barna filed this suit on April 5, 2012, and filed an
amended complaint the following day, naming as defendants
the School Board and individual Board officials Anthony
Demarco, David Hiles, William Hunsicker, Jeffrey Markovich,
Koreen Nalesnik, Anthony Pondish, and Donna Trimmel.
Barna alleged violations of his First Amendment right to free
speech (Count 1) and violations of his First and Fourteenth
Amendment rights to be free from unconstitutional prior
restraint (Count 2).
The Board and the officials moved for judgment on the
pleadings, and the officials moved for dismissal based on
qualified immunity. The District Court denied these motions
on October 15, 2013. The Board and the individual officials
later moved for summary judgment. The District Court
referred the matter to a Magistrate Judge, who recommended
granting summary judgment in favor of the defendants. Barna
timely objected. The District Court ordered supplemental
briefing and oral argument. During oral argument on April 10,
5
2015, the parties agreed that there were no disputes of material
fact. J.A. 9 n.1. Barna moved for summary judgment on April
28, 2015. On November 6, 2015, the District Court granted
summary judgment in favor of both the Panther Valley School
Board and the individual School Board officials.
Barna filed this timely appeal.
II.
The District Court had jurisdiction under 28 U.S.C. §
1331 and 42 U.S.C. §§ 1983 and 1988. We have jurisdiction
pursuant to 28 U.S.C. § 1291. Our review of a District Court’s
grant or denial of summary judgment is plenary, and we apply
the same standard that the District Court applies. Kelly v.
Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 2010). It is
appropriate to grant summary judgment when there is no
genuine issue of material fact and the movant is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a).
III.
The District Court determined that the Board’s
categorical ban on Barna’s attendance at meetings violated
Barna’s First Amendment rights. It nonetheless concluded that
all of the defendants were entitled to qualified immunity
because the right to participate in School Board meetings
despite engaging in a pattern of threatening and disruptive
behavior was not “clearly established.” Barna does not take
issue with the District Court’s finding that the ban was
unconstitutional, and we will not address that determination
6
here. 1 Barna instead argues that the District Court erred in
granting qualified immunity to all of the defendants. We
examine the District Court’s conclusion first with respect to the
individual Board members and then with respect to the Panther
Valley School Board, a municipal entity.
A.
A plaintiff seeking relief under 42 U.S.C. § 1983 must
demonstrate “that the defendants, acting under color of law,
violated the plaintiff’s federal constitutional or statutory rights,
and thereby caused the complained of injury.” Elmore v.
Cleary, 399 F.3d 279, 281 (3d Cir. 2005). Section 1983 is not
a source of substantive rights but rather “a mechanism to
vindicate rights afforded by the Constitution or a federal
statute.” Black v. Montgomery Cty., 835 F.3d 358, 364 (3d
Cir.), as amended (Sept. 16, 2016), cert. denied sub nom.
Pomponio v. Black, 137 S. Ct. 2093 (2017). A defendant sued
under § 1983 is entitled to qualified immunity “unless it is
shown that the official violated a statutory or constitutional
1
The School Board and the individual officials, by contrast,
dispute that the ban was unconstitutional. The parties have
discussed at length in their briefing whether a cross-appeal on
this issue was necessary or even permissible in this case. We
need not reach this question, however, because we have “sound
discretion” to decide the immunity question first, thus avoiding
the constitutional question of whether a right exists. See
Pearson v. Callahan, 555 U.S. 223, 236 (2009) (permitting
courts to determine which of the two prongs of the qualified
immunity analysis should be addressed first); see also Camreta
v. Greene, 563 U.S. 692, 707 (2011).
7
right that was ‘clearly established’ at the time of the challenged
conduct.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014)
(citing Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). A right
is “clearly established” for these purposes when its “contours .
. . [are] sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Wilson
v. Layne, 526 U.S. 603, 615 (1999) (citing Anderson v.
Creighton, 483 U.S. 635, 640 (1987)); see also Hope v. Pelzer,
536 U.S. 730, 741 (2002) (observing that courts should ask
“whether the state of the law [at the relevant time] . . . gave
respondents fair warning that their alleged [conduct] . . . was
unconstitutional”). It is not enough that the right is defined at
a high level of generality; rather, “[t]he dispositive question is
‘whether the violative nature of particular conduct is clearly
established.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)
(quoting al-Kidd, 563 U.S. at 742).
In conducting the inquiry into whether a right is clearly
established, we look first for “applicable Supreme Court
precedent.” Mammaro v. N.J. Div. of Child Prot. &
Permanency, 814 F.3d 164, 169 (3d Cir.), as amended (Mar.
21, 2016). If none exists, we consider whether there is a case
of controlling authority in our jurisdiction or a “‘robust
consensus of cases of persuasive authority’ in the Courts of
Appeals [that] could clearly establish a right for purposes of
qualified immunity.” See id. (quoting Taylor v. Barkes, 135 S.
Ct. 2042, 2044 (2015) (per curiam)). The authority need not
be “directly on point, but existing precedent must have placed
the statutory or constitutional question beyond debate.” al-
Kidd, 563 U.S. at 741.
Barna cites to no case of controlling authority from the
Supreme Court or our Court supporting his position, and we
have found none. To the contrary, we have twice upheld the
8
temporary removal of a disruptive participant from a limited
public forum like a school board meeting. 2 For instance, in
Galena v. Leone, 638 F.3d 186 (3d Cir. 2011), we held that the
temporary ejection of a disruptive participant from a municipal
meeting did not violate the plaintiff’s constitutional rights. Id.
at 213. Similarly, in Eichenlaub v. Twp. of Indiana, 385 F.3d
274 (3d Cir. 2004), we upheld the constitutionality of removing
a speaker from a township meeting to prevent “badgering,
constant interruptions, and disregard for the rules of decorum.”
Id. at 281. 3 Neither case, however, squarely addresses the
2
First Amendment doctrine recognizes three types of fora: the
traditional public forum, the designated public forum, and the
nonpublic forum. Ark. Educ. Television Comm’n v. Forbes,
523 U.S. 666, 677 (1998). We regard a limited public forum
as “a subcategory of the designated public forum.” Donovan
ex rel. Donovan v. Punxsutawney Area Sch. Bd., 336 F.3d 211,
225 (3d Cir. 2003). The parties do not dispute that a school
board meeting is a limited public forum. Barna Br. 23; Board
Br. 23.
3
Our decisions in Galena and Eichenlaub are also in accord
with our caselaw holding that there is no categorical right of
access to school property. See Student Coal. for Peace v.
Lower Merion Sch. Dist. Bd. of Sch. Dirs., 776 F.2d 431, 437
(3d Cir. 1985) (“The courts have never ‘suggested that
students, teachers, or anyone else has an absolute constitutional
right to use all parts of a school building or its immediate
environs for his unlimited expressive purpose.’” (quoting
Grayned v. City of Rockford, 408 U.S. 104, 117–18 (1972))).
The absence of a clearly established right to access school
property further undermines Barna’s argument to the extent he
9
constitutionality of a categorical ban proscribing all future
expression in a limited public forum.
Notwithstanding the absence of precedential authority,
Barna urges us to recognize that the right to participate in
school board meetings despite engaging in a pattern of
threatening and disruptive behavior was clearly established
based on a handful of district court decisions, only some of
which predate the defendants’ institution of the ban. See
Brosseau v. Haugen, 543 U.S. 194, 200 n.4 (2004) (observing
that decisions “that postdate the conduct in question . . . are of
no use in the clearly established inquiry” (citations omitted)).
The only appellate-level case on which Barna relies is
Huminski v. Corsones, 396 F.3d 53 (2d Cir. 2004), as amended
on reh’g (Jan. 18, 2005).
In Huminski, the Court of Appeals for the Second
Circuit considered the constitutionality of several trespass
notices that categorically excluded a protestor from a
courthouse and its parking lot. The Huminski court held that
because the trespass notices “in effect prohibit indefinitely any
and all expressive activity in which [the plaintiff] might want
to engage,” they were “pervasive enough to be viewed as
creating a ‘First-Amendment-Free Zone.’” Id. at 92. The court
thus held that the trespass notices unreasonably restricted the
protestor’s right to free expression under the First Amendment.
Id. The court further concluded that the defendants who issued
the notices were not entitled to qualified immunity because it
was clearly established that such an absolute prohibition of
challenges the ban based on its absolute prohibition of his
presence on the Panther Valley campus.
10
speech that “singl[ed] out” the plaintiff to the exclusion of all
others would be unconstitutional. Id. at 92–93.
The ban at issue in Huminski is plainly distinguishable
from the ban at issue here. Unlike the notices of trespass in
Huminski that completely foreclosed “any and all” protected
speech, id. at 92, the Board’s ban left open alternative channels
for expressive activity, such as permitting Barna to submit
“reasonable and responsible” written questions, J.A. 292.
Even assuming Huminski is persuasive authority supporting
Barna’s position, however, it is insufficient to place the
“statutory or constitutional question beyond debate.” al-Kidd,
563 U.S. at 741.
Indeed, the court’s position in Huminski is at least
partially at odds with the positions adopted by other Courts of
Appeals. For instance, in Lovern v. Edwards, 190 F.3d 648(4th Cir. 1999), the Court of Appeals for the Fourth Circuit
considered the constitutionality of a ban barring the plaintiff
from entering school property. Id. at 652. The plaintiff had
been progressively disruptive during school board meetings
and threatening toward school officials. Id. The plaintiff
challenged the ban on First and Fourteenth Amendment
grounds. Id. at 653. The District Court dismissed the case for
lack of subject matter jurisdiction, concluding that the plaintiff
had failed to state a substantial federal claim. Id. at 654–55.
The Court of Appeals for the Fourth Circuit affirmed,
emphasizing that “[t]he right to communicate is not limitless,”
particularly where the plaintiff has engaged in a “continuing
pattern of verbal abuse and threatening behavior towards
school officials.” Id. at 656. The Court thus upheld the ban
because the plaintiff’s constitutional rights were not “‘directly
11
and sharply’ implicated by . . . [the] prohibition against him.”
Id. (quoting Epperson v. Arkansas, 393 U.S. 97, 104 (1968)).
Barna has not persuasively distinguished Lovern or
suggested why its logic does not extend to the qualified
immunity analysis here. To the contrary, Barna “freely
concedes that the protection of school staff implicates a
significant public interest” and that under Lovern, “school
officials [are] invested with discretion to remove parents from
school property in response to a threat of disruption.” Barna
Br. 23–24. Indeed, the Lovern court’s guidance on the scope
of the “right to communicate” on school property could
plausibly suggest to a reasonable official that the permanent
ban at issue here would pass constitutional muster. Lovern,
190 F.3d at 656. Even assuming there is a protected interest in
participating in school board meetings despite engaging in a
pattern of threatening and disruptive behavior, we cannot fault
the individual Board officials for having failed to recognize
that right as clearly established, particularly in light of the
Lovern decision and the absence of contrary authority from the
Supreme Court or our Court. 4 See al-Kidd, 563 U.S. at 743(“Qualified immunity gives government officials breathing
room to make reasonable but mistaken judgments about open
legal questions.”).
4
The Lovern court was concerned principally with whether
there is a First Amendment right of access to school property
— not, as here, whether there is a First Amendment right to
expression at school board meetings. We nonetheless believe
that the two rights are sufficiently similar that officials could
have relied on Lovern to conclude that their conduct was
constitutionally permissible in these circumstances.
12
We therefore conclude that, given the state of the law at
the time of the Board’s ban, there was, at best, disagreement in
the Courts of Appeals as to the existence of a clearly
established right to participate in school board meetings
despite engaging in a pattern of threatening and disruptive
behavior. 5 Even if a “right can be ‘clearly established’ by
circuit precedent despite disagreement in the courts of
appeals,” Taylor, 135 S. Ct. at 2045, there does not appear to
be any such consensus — much less the robust consensus —
that we require to deem the right Barna asserts here as clearly
established. Accordingly, we will affirm the District Court’s
grant of summary judgment in favor of the individual Board
members on the basis of qualified immunity.
B.
We turn to whether summary judgment was properly
granted in favor of the Board. The Supreme Court in Owen v.
City of Independence, 445 U.S. 622 (1980), held that
municipalities do not enjoy qualified immunity from suit for
damages under § 1983. See id. at 657 (“[M]unicipalities have
no immunity from damages liability flowing from their
5
Two other Courts of Appeals have addressed the
constitutionality of a permanent ban of citizens from municipal
meetings. See Reza v. Pearce, 806 F.3d 497, 505 (9th Cir.
2015); Surita v. Hyde, 665 F.3d 860, 871 (7th Cir. 2011).
Apart from being non-binding precedent in this jurisdiction,
both cases post-date the imposition of the Board’s ban and thus
again “are of no use in the clearly established inquiry.”
Brosseau, 543 U.S. at 200 n.4.
13
constitutional violations.”); see also Hynson By & Through
Hynson v. City of Chester, 827 F.2d 932, 934 (3d Cir. 1987).
The District Court overlooked the Supreme Court’s precedent
in Owen and improperly awarded qualified immunity to the
Board. In his opening brief to this Court, Barna appealed this
ruling generally, but made no arguments specific to the Board
entity, did not distinguish among the defendants, and did not
cite Owen as controlling authority. The Board, by contrast,
concedes that qualified immunity does not shield municipal
entities under Owen but maintains that it is entitled to
immunity because Barna failed to preserve the issue by not
addressing it before the District Court or in his opening brief
to our Court. The Board argues in the alternative that the
record does not support liability under Monell v. Department
of Social Services of the City of New York, 436 U.S. 658(1978). 6
We have long recognized, consistent with Federal Rule
of Appellate Procedure 28(a) and Third Circuit Local
6
Although not subject to respondeat superior liability,
municipalities may be held directly liable under Monell if they
adopt a custom or policy that is unconstitutional or that is the
“moving force” behind any constitutional violation. See
Monell, 436 U.S. at 694; Thomas v. Cumberland Cty., 749
F.3d 217, 222 (3d Cir. 2014). Municipalities can be held liable
regardless of whether it was clear at the time of the policy’s
adoption that such conduct would violate a plaintiff’s
constitutional rights. Owen, 445 U.S. at 656–57. Because
liability may be imposed on a municipality separate and apart
from the liability imposed on an individual officer, “[t]he
precedent in our circuit requires the district court to review the
plaintiffs’ municipal liability claims independently of the
14
Appellate Rule 28.1, that an appellant’s opening brief must set
forth and address each argument the appellant wishes to pursue
in an appeal. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d
Cir. 1993) (“[A]ppellants are required to set forth the issues
raised on appeal and to present an argument in support of those
issues in their opening brief.”); see also Laborers’ Int’l Union
of N. Am. v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.
1994) (holding that an argument is not preserved “unless a
party raises it in its opening brief”); Daggett v. Kimmelman,
811 F.2d 793, 795 n.1 (3d Cir. 1987) (holding that appellants
did not preserve an issue “[b]y failing to raise this issue in their
original briefs”). To be preserved, all arguments must be
supported specifically by “the reasons for them, with citations
to the authorities and parts of the record on which the appellant
relies.” Fed. R. App. P. 28(a)(8)(A). As a result, we have
consistently refused to consider ill-developed arguments or
those not properly raised and discussed in the appellate
briefing. See Doeblers’ Pa. Hybrids, Inc. v. Doebler, 442 F.3d
812, 821 n.10 (3d Cir. 2006) (noting that “passing and
conclusory statements do not preserve an issue for appeal”).
Nor will we reach arguments raised for the first time in a reply
brief or at oral argument. See In re Grand Jury, 635 F.3d 101,
105 n.4 (3d Cir. 2011) (declining to consider argument first
raised at oral argument); In re Stone & Webster, Inc., 558 F.3d
234, 246 n.15 (3d Cir. 2009) (same); In re Surrick, 338 F.3d
section 1983 claims against the individual . . . officers.”
Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d Cir. 1996); see also
Fagan v. City of Vineland, 22 F.3d 1283, 1292 (3d Cir. 1994)
(“A finding of municipal liability does not depend
automatically or necessarily on the liability of a police
officer.”).
15
224, 237 (3d Cir. 2003) (deeming unpreserved a claim that was
omitted from appellant’s initial brief and raised for first time in
a reply brief).
The rules requiring preservation of issues serve
“important judicial interests.” Tri-M Grp., LLC v. Sharp, 638
F.3d 406, 416 (3d Cir. 2011) (quoting Webb v. City of Phila.,
562 F.3d 256, 263 (3d Cir. 2009)); see also Hormel v.
Helvering, 312 U.S. 552, 558 (1941) (recognizing the
“desirability and existence of a general practice under which
appellate courts confine themselves to the issues raised
below”). The rules promote finality by encouraging parties to
advance all relevant arguments and by binding counsel to their
strategic choices. See Wheatley v. Wicomico Cty., 390 F.3d
328, 334–35 (4th Cir. 2004); Sigmon Fuel Co. v. Tenn. Valley
Auth., 754 F.2d 162, 164 (6th Cir. 1985). Accordingly, once
parties choose their arguments, they may only pursue those
arguments. See Fleishman v. Cont’l Cas. Co., 698 F.3d 598,
608 (7th Cir. 2012) (recognizing that the rules “prevent parties
from getting two bites at the apple”).
The preservation rules also protect litigants from unfair
surprise. Webb, 562 F.3d at 263. Additionally, preservation
rules promote judicial efficiency and conservation of judicial
resources by respecting the work of the court of first instance.
Wood v. Milyard, 566 U.S. 463, 473 (2012) (admonishing
reviewing courts “not [to] overlook” the “processes and time
investment” of the court of first instance). This prevents those
courts expending time to consider and resolve arguments
advanced by counsel only to be “reversed on grounds that were
never urged or argued” before trial courts. Caisson Corp. v.
Ingersoll-Rand Co., 622 F.2d 672, 680 (3d Cir. 1980).
16
The effect of failing to preserve an argument will
depend upon whether the argument has been forfeited or
waived. The Supreme Court has observed that “[t]he terms
waiver and forfeiture — though often used interchangeably by
jurists and litigants — are not synonymous.” Hamer v.
Neighborhood Hous. Servs. of Chicago, No. 16-658, 2017 WL
5160782, at *3 n.1 (U.S. Nov. 8, 2017). “Waiver is different
from forfeiture,” United States v. Olano, 507 U.S. 725, 733
(1993), and the distinction can carry great significance. 7 See
Paycom Payroll, LLC v. Richison, 758 F.3d 1198, 1203 (10th
Cir. 2014) (“Waiver is accomplished by intent, but forfeiture
comes about through neglect.” (quoting United States v.
Zubia–Torres, 550 F.3d 1202, 1205 (10th Cir. 2008))).
“[F]orfeiture is the failure to make the timely assertion of a
right,” an example of which is an inadvertent failure to raise an
argument. Olano, 507 U.S. at 733. Waiver, in contrast, “is the
‘intentional relinquishment or abandonment of a known
right.’” Id. (quoting Johnson v. Zerbst, 304 U.S. 458, 464
(1938)). The Supreme Court has deemed an argument waived,
for example, when a party “twice informed the U.S. District
7
Waived claims may not be resurrected on appeal. See Wood,
566 U.S. at 471 n.5 (distinguishing waivers and forfeitures and
observing that “a federal court has the authority to resurrect
only forfeited defenses”); United States v. Jimenez, 512 F.3d
1, 7 (1st Cir. 2007) (“A waiver is unlike a forfeiture, for the
consequence of a waiver is that the objection is
unreviewable.”); Gov’t of Virgin Islands v. Rosa, 399 F.3d
283, 290 (3d Cir. 2005); see also United States v. Lockett, 406
F.3d 207, 213 (3d Cir. 2005) (“The waiver of an appeal will
not be invalidated merely because unanticipated events occur
in the future.”). The effect of a forfeiture is discussed infra.
17
Court that it [would] not challenge, but [is] not conceding, the
timeliness of [the action].” Wood, 566 U.S. at 465 (third
alteration added) (internal quotation marks omitted); United
States v. Cooper, 243 F.3d 411, 416 (7th Cir. 2001) (“We have
found waiver where either a defendant or his attorney expressly
declined to press a right . . . .”).
Because of the important interests underlying the
preservation doctrine, we will not reach a forfeited issue in
civil cases absent truly “exceptional circumstances.” Brown v.
Philip Morris Inc., 250 F.3d 789, 799 (3d Cir. 2001). Such
“circumstances have been recognized when the public interest
requires that the issue[s] be heard or when a manifest injustice
would result from the failure to consider the new issue[s].”
United States v. Anthony Dell’Aquilla, Enters. & Subsidiaries,
150 F.3d 329, 335 (3d Cir. 1998) (alterations in original)
(quoting Altman v. Altman, 653 F.2d 755, 758 (3d Cir. 1981))
(internal quotation marks omitted); see Fleck v. KDI Sylvan
Pools, Inc., 981 F.2d 107, 116 (3d Cir. 1992); see also Flynn v.
Comm’r, 269 F.3d 1064, 1068–69 (D.C. Cir. 2001) (noting that
“exceptional circumstances” may exist where the case involves
“uncertainty in the law; novel, important, and recurring
questions of federal law; intervening change in the law; and
extraordinary situations with the potential for miscarriages of
justice”). Departure from the established preservation rule is a
“narrow exception” to the general bar on such review,
Syverson v. U.S. Dep’t of Agric., 601 F.3d 793, 803 (8th Cir.
2010), and so we will depart only in very “limited”
circumstances, Webb, 562 F.3d at 263. See also Tri-M Grp.,
638 F.3d at 434 (Hardiman, J., concurring) (noting that “truly
exceptional circumstances” must exist before we will reach an
unpreserved issue); Pritzker v. Merrill Lynch, Pierce, Fenner
& Smith, Inc., 7 F.3d 1110, 1115 (3d Cir. 1993) (recognizing
18
that the issues that merit review despite failure to preserve fall
into an “extraordinary category” of cases).
Although our narrow exceptional circumstances rule
applies to all forfeited issues, we have been slightly less
reluctant to bar consideration of a forfeited pure question of
law. See Hormel, 312 U.S. at 557. We have thus observed that
we will reach “a pure question of law even if not raised below
where refusal to reach the issue would result in a miscarriage
of justice or where the issue’s resolution is of public
importance.” Bagot v. Ashcroft, 398 F.3d 252, 256 (3d Cir.
2005) (quoting Loretangeli v. Critelli, 853 F.2d 186, 189–90
n.5 (3d Cir. 1988)); see also Barefoot Architect, Inc. v. Bunge,
632 F.3d 822, 835 (3d Cir. 2011) (addressing a “purely legal
question” despite the appellant’s failure to preserve the issue);
City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114,
140 (2d Cir. 2011) (excusing a forfeiture when the issue was
“purely legal” and the default results from inadvertence);
Council of Alt. Political Parties v. Hooks, 179 F.3d 64, 69 (3d
Cir. 1999) (reaching for the “first time on appeal” an issue that
“concerns a pure question of law”); cf. N.J. Carpenters & the
Trs. Thereof v. Tishman Const. Corp., 760 F.3d 297, 305 (3d
Cir. 2014) (“It is appropriate for us to reach an issue that the
district court did not if ‘the issues provide purely legal
questions, upon which an appellate court exercises plenary
review.’” (quoting Hudson United Bank v. LiTenda Mortg.
Corp., 142 F.3d 151, 159 (3d Cir. 1998))).
With these principles in mind, we first ask whether the
issue of the Board’s immunity is properly preserved, and if not,
whether that failure to preserve constitutes a forfeiture or a
waiver. Barna argues here that he adequately preserved the
issue of the Board’s entitlement to immunity because in both
19
his District Court and appellate briefing, he cited to cases
which themselves reference the Supreme Court’s decision in
Owen. Barna Reply Br. 4. Such implicit references to the
Owen decision do not suffice under Federal Rule of Appellate
Procedure Rule 28(a) and our Rule 28.1, which require briefs
to contain statements of all issues presented for appeal,
together with supporting arguments and citations. See Kost, 1
F.3d at 182. Although Barna broadly challenged the District
Court’s grant of qualified immunity, he did not differentiate
among the defendants. We do not regard such cursory
treatment as sufficient to bring the issue of the Board’s lack of
entitlement to immunity before our Court on appeal. See In re
Surrick, 338 F.3d at 237. That Barna addressed the Owen
decision solely in his reply brief also does not redeem his
failure to do so in his opening brief. Laborers’ Int’l Union, 26
F.3d at 398. We therefore conclude that Barna failed to
preserve the issue of the Board’s immunity by not addressing
it at any level beyond mere generalities.
We next must determine whether Barna’s failure
constitutes a waiver or forfeiture. The Board characterizes
Barna’s failure to raise the Owen issue as a waiver. Board Br.
42–43. Barna’s failures to raise the Owen issue in the District
Court as well as in his opening brief to our Court, however,
appear to have been inadvertent omissions. Under the
framework described above, they are therefore more properly
characterized as forfeitures rather than as waivers. See Olano,
507 U.S. at 733. We accordingly must consider whether there
are truly exceptional circumstances to excuse this forfeiture.
Turning to that inquiry, we believe that the
circumstances of this case compel our review here. The
District Court’s legally incorrect holding granting “judgment
in favor of the Defendants on the basis of qualified immunity,”
20
J.A. 51, directly contravenes the Supreme Court’s holding in
Owen. The availability of qualified immunity for a municipal
entity is thus precisely the type of “pure question of law” that
commands our attention. Tri-M Grp., 638 F.3d at 418; Bagot,
398 F.3d at 256 (deciding the merits of a forfeited claim where
“the proper resolution of the legal question, though not exactly
simple, [wa]s reasonably certain”). Holding otherwise would
problematically permit the District Court’s pure legal error to
stand uncorrected. See Wheeler v. City of Pleasant Grove, 664
F.2d 99, 101 (5th Cir. 1981) (reversing the district court’s
award of qualified immunity to a municipality as an erroneous
“conclusion of law” and remanding for consideration in light
of Owen).
Moreover, reaching the Owen issue here would not
implicate the prudential concerns underlying the forfeiture
doctrine. Huber v. Taylor, 469 F.3d 67, 75 (3d Cir. 2006). The
Board, which itself raised the Owen issue, would not be
unfairly surprised by judicial consideration of the issue. See
Barefoot Architect, 632 F.3d at 835. To the contrary, the
parties discussed the matter at oral argument and subsequently
provided supplemental briefing on it. Moreover, the Supreme
Court’s decision in Owen is long-standing authority that has
been repeatedly cited in our precedents on qualified immunity.
See, e.g., Kelly, 622 F.3d at 263; Grant v. City of Pittsburgh,
98 F.3d 116, 126 n.7 (3d Cir. 1996); Carver v. Foerster, 102
F.3d 96, 102 (3d Cir. 1996). We therefore do not believe that
the Board would be unduly surprised by our consideration of
the issue in this context.
Considering Owen here is also in accord with the
approach adopted by our sister circuit Courts of Appeals,
which have reached the issue notwithstanding the appellant’s
failure to preserve the issue. For instance, in Hedge v. County
21
of Tippecanoe, 890 F.2d 4 (7th Cir. 1989), the appellant failed
to raise the Owen issue before the district court. 8 The Court of
Appeals for the Seventh Circuit held that the “fail[ure] to bring
th[e] case to the attention of the trial judge” did not prevent
appellate consideration of the issue. Id. at 8. The Hedge court
concluded, inter alia, that because the Supreme Court’s
decision in Owen “prohibits a governmental body, as a matter
of law, from asserting the defense of qualified immunity,” that
case precluded the entry of summary judgment in favor of the
municipal entity notwithstanding the appellant’s failure to
preserve the issue. Id. The decision in Hedge is persuasive
authority suggesting that the Board should not be permitted to
utilize a defense to which it is not legally entitled.
Several of our sister Courts of Appeals have similarly
reversed a district court’s qualified immunity ruling where,
regardless of the preservation posture, the district court erred
in overlooking the Owen issue. For instance in Sample v. City
of Woodbury, 836 F.3d 913 (8th Cir. 2016), the Court of
Appeals for the Eighth Circuit remanded for consideration of
the municipality’s liability where the District Court “did not
distinguish the claims” against the individual officials and the
municipality. 9 The Sample court aptly noted that it could not
8
The Court of Appeals for the Seventh Circuit characterized
the appellant’s failure to raise the Owen issue as a “waiver.”
Hedge, 890 F.2d at 8. In light of the discussion herein, we
believe it is more aptly characterized as a forfeiture.
9
The decision in Sample concerned the District Court’s legally
incorrect award of absolute immunity to the municipality. Its
holding nevertheless applies with equal force with respect to
an award of qualified immunity. See Leatherman v. Tarrant
22
simply “ignore [the] reasoning in Owen.” Id. at 917. The
Court of Appeals for the Second Circuit adopted a similar
position in Askins v. Doe No. 1, 727 F.3d 248 (2d Cir. 2013),
where it too confronted a failure to distinguish the individual
defendants from the municipal defendant. See id. at 254 (“To
rule, as the district court did, that the City of New York escapes
liability for the tortious conduct of its police officers because
the individual officers are entitled to qualified immunity would
effectively extend the defense of qualified immunity to
municipalities, contravening the Supreme Court’s holding in
Owen.”). These cases persuasively suggest that the public
interest would be better served by addressing the Owen issue
than by ignoring it. 10
For all of these reasons, we conclude that there are
exceptional circumstances permitting review of the otherwise
forfeited issue of the Board’s entitlement to immunity.
Because the District Court erred in awarding qualified
immunity to the Board, we will vacate with respect to the grant
of summary judgment in the Board’s favor. We take no
position on the viability of the claims against the Board,
Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163,
166 (1993) (observing that it is “quite clear that, unlike various
government officials, municipalities do not enjoy immunity
from suit — either absolute or qualified — under § 1983.”).
10
Although forfeiture of the Owen issue was not discussed in
detail in either Sample or Askins, we regard both cases as
persuasive authority indicating that not distinguishing the
individual defendants from the municipal defendant pursuant
to Owen is the type of pure legal error requiring remand.
23
including whether Barna has even stated a claim under Monell,
leaving that determination to the District Court. We will
accordingly vacate and remand so that the District Court may
consider the Board’s liability in the first instance. 11
IV.
For the foregoing reasons, we will affirm the District
Court’s entry of summary judgment in favor of the individual
officials of the Panther Valley School Board in their individual
capacities. We will vacate the District Court’s order granting
summary judgment to the Panther Valley School Board and the
individual officials in their official capacities and will remand
for proceedings consistent with this opinion.
11
Our analysis as to the Board applies to the individual
officials, as sued in their official capacities only. See Santos v.
Frederick Cty. Bd. of Comm’rs, 725 F.3d 451, 470 (4th Cir.
2013); Lore v. City of Syracuse, 670 F.3d 127, 164 (2d Cir.
2012). Therefore, we will also vacate the District Court’s order
granting summary judgment to the individual officials, as sued
in their official capacities.
24