Barna v. Board of School Directors of the Panther Valley School District

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