Motion to dismiss — Joseph B. Scarnati, III, In His Capacity as Senate President Pro Tempore, Appellant v. Louis Agre, et al.

No. 17-1368

IN THE

Supreme Court of the United States

————

JOSEPH B. SCARNATI, III, IN HIS OFFICIAL CAPACITY AS

SENATE PRESIDENT PRO TEMPORE,

v.

Appellant,

LOUIS AGRE ET AL.,

Appellee.

————

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

————

MOTION TO DISMISS

————

DENISE J. SMYLER

GREGORY G. SCHWAB

THOMAS P. HOWELL

OFFICE OF

GENERAL COUNSEL

333 Market Street

17th Floor

Harrisburg, PA 17101

Counsel for Governor

Thomas W. Wolf

MARK A. ARONCHICK

Counsel of Record

MICHELE D. HANGLEY

ASHTON R. LATTIMORE

HANGLEY ARONCHICK SEGAL

PUDLIN & SCHILLER

One Logan Square, 27th Floor

Philadelphia, PA 19103

(215) 568-6200

maronchick@hangley.com

mhangley@hangley.com

alattimore@hangley.com

TIMOTHY E. GATES

KATHLEEN M. KOTULA

Counsel for Governor

IAN B. EVERHART

Thomas W. Wolf,

PENNSYLVANIA

Acting Secretary of the

DEPARTMENT OF STATE

Commonwealth Robert

Office of Chief Counsel

Torres, and Commissioner

306 North Office Building

Jonathan Marks

Harrisburg, PA 17120

Counsel for

Acting Secretary Torres

and Commissioner Marks

April 30, 2018

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

QUESTION PRESENTED

Where Appellant appeals from a three-judge court’s

discovery orders, which did not grant or deny injunctive relief, does this Court lack jurisdiction over the

appeal under 28 U.S.C. § 1253?

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................................

i

TABLE OF AUTHORITIES ................................

iv

OPINION BELOW ..............................................

1

JURISDICTION ..................................................

1

INTRODUCTION ................................................

1

STATEMENT ......................................................

2

ARGUMENT ........................................................

5

I. UNDER § 1253, THIS COURT LACKS

JURISDICTION OVER APPELLANT’S

CHALLENGE TO THE DISTRICT

COURT’S

DISCOVERY

ORDERS

BECAUSE THOSE DECISIONS DID

NOT GRANT OR DENY INJUNCTIVE

RELIEF .....................................................

5

II. BECAUSE THE AGRE PLAINTIFFS’

APPEAL OF THE DENIAL OF INJUNCTIVE RELIEF IS MOOT, IT CANNOT

CREATE § 1253 JURISDICTION OVER

THIS APPEAL ..........................................

7

CONCLUSION ....................................................

10

(iii)

iv

TABLE OF AUTHORITIES

CASES

Page(s)

Consumers Union of U.S., Inc. v.

Virginia State Bar,

688 F.2d 218 (4th Cir. 1982) .....................

9

Gerstein v. Coe,

417 U.S. 279 (1974) ...................................

6

Goldstein v. Cox,

396 U.S. 471 (1970) ...................................

5

Gunn v. Univ. Comm. to End War in

Viet Nam,

399 U.S. 383 (1970) ...................................

6

League of Women Voters v.

Commonwealth,

178 A.3d 737 (Pa. 2018) ............................

4

League of Women Voters of Pennsylvania

v. Commonwealth,

175 A.3d 282 (Pa. 2018) ............................

3

League of Women Voters of Pennsylvania

v. Commonwealth,

No. 159 MM 2017, 2018 WL 936941

(Pa. Feb. 19, 2018) ....................................

3

League of Women Voters v.

Commonwealth,

No. 261 M.D. 2017 (Dec. 29, 2017) ...........

4

Perez v. Ledesma,

401 U.S. 82 (1971) ....................................

6-7

Republican Caucus of Pennsylvania

House of Representatives v. Vieth,

537 U.S. 801 (2002) ...................................

8

v

TABLE OF AUTHORITIES—Continued

Page(s)

Rockefeller v. Catholic Med. Ctr. of

Brooklyn & Queens, Inc.,

397 U.S. 820 (1970) ...................................

5

Roe v. Wade,

410 U.S. 113 (1973) ...................................

6

Supreme Court of Virginia v. Consumers

Union of U. S., Inc.,

446 U.S. 719 (1980) ...................................

6, 8

Supreme Court of Virginia v. Consumers

Union of the United States,

451 U.S. 1012 (1981) .................................

9

Vieth v. Pennsylvania,

67 F. App’x 95 (3d Cir. 2003) ....................

8

STATUTES

28 U.S.C. § 1253 ............................... 1, 5, 6, 7, 8, 9

COURT FILINGS

Jurisdictional Statement, Agre v. Wolf,

No. 17-1339 (March 19, 2018) ..................

3

Motion for Protective Order, Agre v.

Wolf, No. 2:17-cv-4392 (E.D. Pa. Nov. 17,

2017) ..........................................................

2

Motion for Protective Order, Agre v.

Wolf, No. 2:17-cv-4392 (E.D. Pa. Nov. 22,

2017) ..........................................................

2

Motion to Affirm, Agre v. Wolf, No. 17-1339

(Apr. 23, 2018)........................................... 5, 7, 8

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Motion to Dismiss, Agre v. Wolf, No. 17-1339

(Apr. 23, 2018)........................................... 4, 5, 7

Order, Agre v. Wolf, No. 2:17-cv-4392 (E.D.

Pa. Nov. 9, 2017) .......................................

2

Order, Agre v. Wolf, No. 2:17-cv-4392 (E.D.

Pa. Nov. 22, 2017) .....................................

2

Order, Agre v. Wolf, No. 2:17-cv-4392 (E.D.

Pa. Nov. 28, 2017) .....................................

2

Plaintiffs’ Motion to Compel, Agre v. Wolf,

No. 2:17-cv-4392 (E.D. Pa. Oct. 30, 2017) ...

2

Recommended Findings of Fact and

Conclusions of Law, League of Women

Voters v. Commonwealth, No. 261 M.D.

2017 (Dec. 29, 2017) ..................................

3, 4

MOTION TO DISMISS

————

OPINION BELOW

The district court’s November 9, 2017 order holding

that the speech or debate privilege is qualified and

may be pierced (ECF No. 76), the court’s November 22

and November 28, 2017 denials of protective orders

on the same basis, and the court’s December 4, 2017

rulings during oral argument are not published in the

Federal Supplement.

JURISDICTION

The orders appealed from were issued November 9,

2017; November 22, 2017; November 28, 2017; and

December 4, 2017. The notice of appeal was filed on

January 24, 2018. Appellant invokes the jurisdiction

of this Court under 28 U.S.C. §1253. However, this

Court lacks jurisdiction because the orders appealed

from did not grant or deny injunctive relief and there

is no other basis for jurisdiction.

INTRODUCTION

Appellant, President Pro Tempore of the Pennsylvania

Senate Joseph Scarnati, contends that this Court has

jurisdiction to hear this appeal under 28 U.S.C. § 1253,

which provides for direct appeals to this Court from

decisions of three-judge courts. However, § 1253 permits direct appeals only of orders “granting or denying

. . . an interlocutory or permanent injunction in any

civil action, suit or proceeding[.]” Section 1253 thus

does not confer jurisdiction over this appeal of discovery orders. The fact that other parties to the underlying litigation have brought a separate appeal from the

district court’s order denying an injunction cannot

2

save Appellant’s appeal, because that separate appeal

has been rendered moot by recent events and should

be dismissed. Therefore, there is no basis for this

Court to exercise jurisdiction over this appeal.

STATEMENT

1. In the underlying litigation, the plaintiffs (here,

Appellees) mounted a challenge to the congressional

redistricting map enacted by the Pennsylvania General Assembly in 2011 (the “2011 Plan”). Appellees

contended that the 2011 Plan violated the U.S.

Constitution; they sought declaratory and injunctive

relief that would have barred the continued use of the

2011 Plan and required its replacement with a nonpartisan map prior to the 2018 congressional elections.

A three-judge panel was appointed, and Appellant

and the Speaker of the Pennsylvania House of

Representatives, Michael Turzai, were granted leave

to intervene as defendants.

During the course of discovery and trial, Appellant

and Speaker Turzai sought to invoke legislative privilege to shield from discovery the facts and data

they relied upon when drafting the 2011 Plan. See

Plaintiffs’ Motion to Compel, Agre v. Wolf, No. 2:17-cv4392 (E.D. Pa. 2017) (ECF No. 51) (Oct. 30, 2017);

November 17 and 22, 2017 Motions for Protective

Order, Agre v. Wolf, No. 2:17-cv-4392 (E.D. Pa. 2017)

(ECF Nos. 118, 123) (Nov. 17, Nov. 22). The district

court held that the legislative privilege was qualified

and did not apply to the documents that Appellant and

Speaker Turzai sought to protect. See Nov. 9, 2017

Order, Agre v. Wolf, No. 2:17-cv-4392 (E.D. Pa. 2017)

(App’x 336); Nov. 22, 2017 Order, Agre v. Wolf, No.

2:17-cv-4392 (E.D. Pa. 2017) (App’x 339); Nov. 28, 2017

Order, Agre v. Wolf, No. 2:17-cv-4392 (E.D. Pa. 2017)

3

(App’x 342). Accordingly, Speaker Turzai produced a

set of the requested data to the plaintiffs (the “Turzai

data”).

A three-judge panel dismissed the action in a split

decision on January 10, 2018. (App’x 1). Appellees

have appealed the district court’s decision to this

Court. See Jurisdictional Statement, Agre v. Wolf, No.

17-1339 (March 19, 2018).

2. While the proceedings below were taking place,

a separate challenge to the 2011 Plan, League of

Women Voters of Pennsylvania v. Commonwealth, was

moving through the Pennsylvania state courts. The

Commonwealth Court of Pennsylvania heard the evidence in that case and issued recommended findings

of fact. See Recommended Findings of Fact and

Conclusions of Law, League of Women Voters v.

Commonwealth, No. 261 M.D. 2017 (Dec. 29, 2017).

On January 19, 2018, the Pennsylvania Supreme

Court struck down the 2011 Plan as a violation of the

Pennsylvania constitution. League of Women Voters

of Pennsylvania v. Commonwealth, 175 A.3d 282

(Pa. 2018). A month later, the court ordered the

use of a remedial map drawn by a court-appointed

expert. League of Women Voters of Pennsylvania v.

Commonwealth, No. 159 MM 2017, 2018 WL 936941,

at *5 (Pa. Feb. 19, 2018).1

1

The record does not support Appellant’s contention that the

district court’s discovery orders in the underlying case affected

the outcome of League of Women Voters. First, Appellant incorrectly states that the opinions of a plaintiff’s expert, Dr. Jowei

Chen, “were based on data files that were produced” in the

District Court case. Juris. Stmt. at 13. In fact, the bulk of Dr.

Chen’s expert report analyzed 1,000 computer simulations, which

were “independent of [the Turzai data] shapefiles.” See Expert

4

The Pennsylvania Department of State has duly implemented the remedial map. Candidate petitioning and

nomination periods have already occurred under the

remedial map, and the congressional primary election

scheduled to occur on May 15, 2018 will proceed under

the remedial map.

3. As a consequence of the Pennsylvania Supreme

Court’s rulings in League of Women Voters, the 2011

Plan that Appellees challenged in the underlying

litigation will not be used in the 2018 congressional

elections. Therefore, the parties filing the instant

Motion to Dismiss—Governor Thomas W. Wolf, Acting

Secretary of the Commonwealth Robert Torres, and

Commissioner Jonathan Marks—have also moved to

dismiss as moot Appellees’ appeal of the District

Report of Jowei Chen, Ph.D., App’x at 354. While Dr. Chen

analyzed the Turzai data and discussed it briefly in his expert

report, that analysis was independent from his analysis of the

simulations. Id. Second, the Commonwealth Court expressly

noted that it did not rely upon Dr. Chen’s analysis of the Turzai

data, or the data itself, for any of its factual findings, stating: “Dr.

Chen testified regarding data files purportedly produced by

Speaker Turzai in the Agre case, but the Court makes no findings

regarding that aspect of Dr. Chen’s expert report or testimony.”

Recommended Findings of Fact and Conclusions of Law at ¶ 307,

League of Women Voters v. Commonwealth, No. 261 M.D. 2017

(Dec. 29, 2017). Finally, the Pennsylvania Supreme Court did not

rely upon the Turzai data or any testimony regarding the Turzai

data. In its February 7, 2018 opinion, the court discussed only

the portion of Dr. Chen’s expert testimony that concerned his

simulations and analysis thereof. League of Women Voters v.

Commonwealth, 178 A.3d 737, 821 (Pa. 2018). The court

acknowledged that Dr. Chen had testified about the Turzai data

and that the data had been submitted to the court, but indicated

it would “not further address these materials[.]” Id. at 768.

Appellant’s assertions that the Pennsylvania Supreme Court

“considered” and “relied upon testimony concerning the [Turzai]

data files” are thus misstatements of the record. Juris. Stmt. 16.

5

Court’s order dismissing their claims. See Motion to

Dismiss filed April 23, 2018, Agre v. Wolf, No. 17-1339.

Appellant and Speaker Turzai have also moved to

dismiss Appellees’ appeal, arguing that it is moot and

otherwise jurisdictionally defective. See Motion to

Affirm filed April 23, 2018, Agre v. Wolf, No. 17-1339.

ARGUMENT

I. UNDER § 1253, THIS COURT LACKS

JURISDICTION OVER APPELLANT’S

CHALLENGE TO THE DISTRICT COURT’S

DISCOVERY ORDERS BECAUSE THOSE

DECISIONS DID NOT GRANT OR DENY

INJUNCTIVE RELIEF.

This Court “has more than once stated that its

jurisdiction under the Three-Judge Court Act is to be

narrowly construed since any loose construction of the

requirements of (the Act) would defeat the purposes of

Congress to keep within narrow confines our appellate

docket.” Goldstein v. Cox, 396 U.S. 471, 478 (1970).

Accordingly, the Court has repeatedly declined to

exercise § 1253 jurisdiction over appeals of orders from

three-judge courts where, as here, the orders at issue

did not grant or deny injunctive relief. In Goldstein,

the appellant sought Supreme Court review of a threejudge court’s order denying a motion for summary

judgment by a plaintiff whose complaint requested

injunctive relief. The Court held that such an order

was not “an order . . . denying an . . . injunction” within

the meaning of § 1253, and therefore the Court could

not hear the appeal. Id. at 475-76. This Court has

repeatedly reaffirmed the holding in Goldstein. See

Rockefeller v. Catholic Med. Ctr. of Brooklyn & Queens,

Inc., 397 U.S. 820, 820 (1970) (finding that the court

6

lacked jurisdiction to hear appeal of declaratory judgment order from three-judge district court because

“[t]he judgment appealed from does not include an

order granting or denying an interlocutory or permanent injunction and is therefore not appealable to this

Court under 28 U.S.C. § 1253”); Gunn v. Univ. Comm.

to End War in Viet Nam, 399 U.S. 383, 386 (1970) (no

jurisdiction under § 1253 where three-judge court’s

opinion held statute unconstitutional but did not

enjoin its enforcement); Gerstein v. Coe, 417 U.S. 279,

279 (1974) (dismissing appeal from three-judge court

for want of jurisdiction where only declaratory relief

was granted). Here, Appellant seeks to challenge

several rulings by the three-judge court that declined

to apply the legislative privilege to a set of documents

Appellant sought to shield from discovery. Such rulings do not fit within the plain meaning of § 1253.

While this Court has sometimes heard appeals from

non-injunctive orders in cases where a party also

appealed a grant or denial of injunctive relief, such

appeals have come from the same parties that

appealed the grant or denial of injunctive relief. They

have not concerned discovery issues entirely separate

from the subject of injunctive relief, but rather

addressed questions closely tied to the merits of the

injunction sought. See, e.g., Roe v. Wade, 410 U.S. 113,

123 (1973) (in appeal from injunctive relief order, also

exercising jurisdiction over appeal from declaratory

judgment order where “the arguments as to both aspects

[were] necessarily identical”); Virginia v. Consumers

Union of U. S., Inc., 446 U.S. 719, 737 n.16 (1980)

(hearing appeal from injunctive relief and attorneys’

fees orders where statute provided for injunctions

and permitted prevailing party to seek fees); Perez v.

7

Ledesma, 401 U.S. 82, 90 (1971) (Stewart, J., concurring)

(Court lacked jurisdiction over appeal from declaratory judgment where “the District Court’s action on

the prayer for declaratory relief was [not] so bound up

with its action on the request for an injunction that

this Court might, on direct appeal, consider the propriety of declaratory relief on pendency grounds”). Appellant’s challenge to the district court’s legislative privilege decisions is far afield of the merits of the question

of enjoining the use of the 2011 Plan. Accordingly, this

Court lacks jurisdiction under § 1253.

II. BECAUSE THE AGRE PLAINTIFFS’

APPEAL OF THE DENIAL OF INJUNCTIVE RELIEF IS MOOT, IT CANNOT

CREATE § 1253 JURISDICTION OVER

THIS APPEAL.

Even if one party’s appeal of a grant or denial of an

injunction could ever create a form of pendent § 1253

jurisdiction over another party’s appeal of a discovery

order—which, as discussed above, it cannot—Appellees’

appeal (No. 17-1339) could not serve that purpose

here. This is because Appellees’ appeal has been

rendered moot by events that have occurred since the

district court’s decision, and the Court therefore lacks

jurisdiction over it. As such, Appellees’ appeal cannot

confer this Court with jurisdiction over Appellant’s

appeal. See Motion to Dismiss filed April 23, 2018,

Agre v. Wolf, No. 17-1339 (arguing that because the

2011 Plan has been struck down and replaced,

plaintiffs’ claims in the underlying action no longer

present a “live” case or controversy, and no effectual

relief remains to be granted). Indeed, Appellant and

Speaker Turzai recently filed a Motion to Affirm in

response to Appellees’ Statement of Jurisdiction; they

8

argue, inter alia, that “[i]t is hard to imagine a more

jurisdictionally defective appeal than this one,” “[t]his

appeal violates numerous jurisdictional bars to relief,”

and “the case is moot.” Motion to Affirm, filed April

23, 2018, Agre v. Wolf, No. 17-1339, at 1, 8.2

This Court confronted a similar scenario in Republican

Caucus of Pennsylvania House of Representatives v.

Vieth, 537 U.S. 801 (2002) (Mem.), when the Republican Caucus appealed to this Court from a three-judge

district court’s denial of a motion to quash a subpoena.

See Vieth v. Pennsylvania, 67 F. App’x 95, 98 (3d Cir.

2003). In the same underlying case, the district court

had also entered an order granting the Vieth plaintiffs’

request for injunctive relief, and while that order was

also appealed to this court, the appeals were ultimately dismissed as moot. See Schweiker v. Vieth, 537

U.S. 801 (2002) (Mem.) (dismissing appeal as moot);

Jubelirer v. Vieth, 537 U.S. 801 (2002) (Mem.) (dismissing appeal as moot). On the same day, this Court

also dismissed the Caucus’s appeal of the discovery

order “for want of jurisdiction.” Republican Caucus,

537 U.S. at 537. The Third Circuit subsequently

exercised jurisdiction over the Caucus’s appeal and

explained, “the discovery order at issue in this appeal

was not, of course, an order granting or denying injunctive relief and so appeal to the Supreme Court [was]

inappropriate” under § 1253. Vieth v. Pennsylvania,

67 F. App'x 95, 98 (3d Cir. 2003). Similarly, in

Virginia v. Consumers Union of U. S., Inc., 446 U.S.

2

While the Movants agree that Appellees’ appeal is moot, they

do not adopt any of the Motion to Affirm’s other jurisdictional

arguments. They also do not adopt any of Appellant and Speaker

Turzai’s arguments regarding the substantive merits of the

claims below.

9

719, when an appeal from a three-judge district court’s

order no longer presented a live controversy because

this Court had already decided it during an earlier

round of appeals, the Court dismissed two related

appeals of attorneys’ fee awards “for want of jurisdiction.” See Supreme Court of Virginia v. Consumers

Union of the United States, 451 U.S. 1012 (1981)

(Mem.); Consumers Union of the United States v.

Virginia State Bar, 451 U.S. 1012 (1981) (Mem.).

Subsequently, the Fourth Circuit Court of Appeals

took jurisdiction over the fee award appeals and noted

that “[t]he Supreme Court did not have appellate

jurisdiction under 28 U.S.C. s 1253 to entertain a

direct appeal of the attorney's fee dispute since the

question of injunctive relief sought pursuant to the

section 1983 issue was no longer before the Court.”

See Consumers Union of U.S., Inc. v. Virginia State

Bar, 688 F.2d 218, 220 n.1 (4th Cir. 1982) (citing

Supreme Court of Virginia v. Consumers Union, 446

U.S. 719, 737, n. 16 (1980)).

Because Appellees’ separate appeal is moot, this

Court need not reach the issue of whether one party’s

direct appeal of an order “granting or denying . . .

an interlocutory or permanent injunction” can confer

jurisdiction to hear other parties’ direct appeals of

other issues in the case. Here, Appellees’ separate

appeal cannot stand, and therefore it cannot provide a

basis to contend that this Court may exercise jurisdiction over the instant appeal.

10

CONCLUSION

For the foregoing reasons, the appeal should be

dismissed for want of jurisdiction.

Respectfully submitted,

DENISE J. SMYLER

GREGORY G. SCHWAB

THOMAS P. HOWELL

OFFICE OF

GENERAL COUNSEL

333 Market Street

17th Floor

Harrisburg, PA 17101

Counsel for Governor

Thomas W. Wolf

MARK A. ARONCHICK

Counsel of Record

MICHELE D. HANGLEY

ASHTON R. LATTIMORE

HANGLEY ARONCHICK SEGAL

PUDLIN & SCHILLER

One Logan Square, 27th Floor

Philadelphia, PA 19103

(215) 568-6200

maronchick@hangley.com

mhangley@hangley.com

alattimore@hangley.com

TIMOTHY E. GATES

KATHLEEN M. KOTULA

Counsel for Governor

IAN B. EVERHART

Thomas W. Wolf,

PENNSYLVANIA

Acting Secretary of the

DEPARTMENT OF STATE

Commonwealth Robert

Office of Chief Counsel

Torres, and Commissioner

306 North Office Building

Jonathan Marks

Harrisburg, PA 17120

Counsel for

Acting Secretary Torres

and Commissioner Marks

April 30, 2018