New York ex rel. James v. Griepp, No. 18-2454 (2d Cir. 2021)
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The Second Circuit affirmed the district court's denial of plaintiff's motion for a preliminary injunction against defendants for alleged violations of the federal Freedom of Access to Clinic Entrances Act (FACE), the New York State Clinic Access Act (State Act), and the New York City Access to Reproductive Health Care Facilities Act (City Act).
The court held that the district court did not abuse its considerable discretion in denying a preliminary injunction. At this stage and as to the violations the district court found, the district court concluded that the Attorney General had not demonstrated irreparable harm. In this case, many of the issues are close ones and the court cannot say that the district court abused its considerable discretion in denying a preliminary injunction. Because the court did not disrupt the district court's determination that a preliminary injunction should not issue at this time, the court did not reach defendants' cross-appeal challenging the Attorney General's standing under the City Act or their constitutional challenges to FACE, the State Act, and the City Act.
This opinion or order relates to an opinion or order originally issued on March 10, 2021.
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18-2454 (L) New York ex rel. James v. Griepp 2 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 3 _______________ 4 August Term 2019 5 (Argued: September 26, 2019 Decided: August 26, 2021) 6 Docket Nos. 18-2454, 18-2623, 18-2627, 18-2630 7 _______________ 1 8 9 PEOPLE OF THE STATE OF NEW YORK by LETITIA JAMES, Attorney General of the State of New York, 10 Plaintiff-Appellant Cross-Appellee, 11 v. 12 15 KENNETH GRIEPP, RONALD GEORGE, PATRICIA MUSCO, RANVILLE THOMAS, OSAYINWENSE OKUONGHAE, ANNE KAMINSKY, BRIAN GEORGE, SHARON RICHARDS, DEBORAH M. RYAN, ANGELA BRAXTON, JASMINE LALANDE, PRISCA JOSEPH, SCOTT FITCHETT, JR., 16 Defendants-Appellees Cross-Appellants. 17 _______________ 13 14 18 19 20 Before: LIVINGSTON, Chief Judge, CALABRESI, and POOLER, Circuit Judges. _______________ Appeal from an order of the United States District Court for the Eastern 21 District of New York (Amon, J.) denying Plaintiff-Appellant’s motion for a 22 preliminary injunction against Defendants-Appellees for alleged violations of the 23 federal Freedom of Access to Clinic Entrances Act (“FACE”), 18 U.S.C. § 248; the 24 New York State Clinic Access Act (“State Act”), N.Y. Penal Law § 240.70; N.Y. 1 Civ. Rights Law § 79-m; and the New York City Access to Reproductive Health 2 Care Facilities Act (“City Act”), N.Y.C. Admin. Code § 10-1001 et seq. 3 Defendants-Appellees cross-appeal from the district court’s order. They 4 challenge the district court’s conclusions that the New York Attorney General 5 may bring a parens patriae action under the City Act; that FACE, the State Act, 6 and the City Act do not violate the First Amendment; and that the Attorney 7 General is likely to succeed on the merits of her claim that defendant Brian 8 George physically obstructed patient access to a reproductive health clinic in 9 violation of FACE, the State Act, and the City Act. Defendants-Appellees further 10 argue that the City Act’s follow-and-harass and clinic-interference provisions are 11 unconstitutionally vague. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 We affirm the district court’s denial of a preliminary injunction and remand for full consideration of the merits. _______________ Philip J. Levitz, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, and Steven C. Wu, Deputy Solicitor General, on the brief), for Letitia James, Attorney General of the State of New York, New York, NY, for PlaintiffAppellant Cross-Appellee People of the State of New York. Adam S. Hochschild, Hochschild Law Firm, Plainfield, VT; Stephen M. Crampton, Thomas More Society, Tupelo, MS; and Martin A. Cannon (Michael G. McHale, on the brief), Thomas More Society, Crescent, IA, for DefendantsAppellees Cross-Appellants Kenneth Griepp, Ronald George, Patricia Musco, Ranville Thomas, Osayinwense Okuonghae, Anne Kaminsky, Brian George, Sharon Richards, Deborah M. Ryan, and Prisca Joseph. Richard Thompson, Thomas More Law Center, Ann Arbor, MI, for DefendantsAppellees Cross-Appellants Angela Braxton and Jasmine LaLande. Roger K. Gannam, Liberty Counsel, Orlando, FL, for Defendant-Appellee CrossAppellant Scott Fitchett, Jr. Eva L. Jerome, Assistant Corporation Counsel (Richard Dearing and Jeremy W. Shweder, on the brief), for Georgia M. Pestana, Corporation Counsel of the City of 2 1 2 3 4 5 6 7 8 New York, New York, NY, for Amicus Curiae the City of New York in support of Plaintiff-Appellant Cross-Appellee. Erin Beth Harrist (Arthur Eisenberg, on the brief), New York Civil Liberties Union, New York, NY, for Amicus Curiae New York Civil Liberties Union in support of Plaintiff-Appellant Cross-Appellee. Philip J. Vecchio, East Greenbush, NY, for Amici Curiae 40 Days for Life, Pro-Life Action Ministries, Californians for Life, and Issues4Life Foundation in support of Defendants-Appellees Cross-Appellants’ petitions for rehearing or rehearing en banc. _______________ 9 10 11 GUIDO CALABRESI, Circuit Judge: The Attorney General of New York appeals from an order of the United 12 States District Court for the Eastern District of New York (Amon, J.) denying her 13 motion for a preliminary injunction against certain anti-abortion protestors. New 14 York ex rel. Underwood v. Griepp, No. 17-CV-3706, 2018 WL 3518527 (E.D.N.Y. July 15 20, 2018). The Attorney General sought an injunction based on the protestors’ 16 alleged violations of the federal Freedom of Access to Clinic Entrances Act 17 (“FACE”), 18 U.S.C. § 248; the New York State Clinic Access Act (“State Act”), 18 N.Y. Penal Law § 240.70; N.Y. Civ. Rights Law § 79-m; and the New York City 19 Access to Reproductive Health Care Facilities Act (“City Act”), N.Y.C. Admin. 20 Code § 10-1001 et seq. 3 1 The protestors cross-appeal. They challenge the district court’s holdings 2 that the Attorney General may bring a parens patriae action under the City Act, 3 Griepp, 2018 WL 3518527, at *25–29; that FACE, the State Act, and the City Act do 4 not violate the First Amendment, id. at *29–30; and that the Attorney General is 5 likely to succeed on the merits of her claim that defendant Brian George 6 physically obstructed patient access to a reproductive health clinic in violation of 7 FACE, the State Act, and the City Act, id. at *42. The cross-appellants also ask us 8 to declare unconstitutional the City Act’s follow-and-harass and clinic- 9 interference provisions, N.Y.C. Admin. Code § 10-1003(a)(3), (6), which they 10 argue are void for vagueness. 11 While some members of this Court might have resolved the matter 12 differently in the first instance, we hold that the district court did not abuse its 13 considerable discretion in denying a preliminary injunction. Because we do not 14 disrupt the district court’s determination that a preliminary injunction should 15 not issue at this time, we do not reach the cross-appellants’ challenge to the 16 Attorney General’s standing under the City Act or their constitutional challenges 17 to FACE, the State Act, and the City Act. 4 1 BACKGROUND 2 Following a yearlong investigation, the New York Attorney General filed 3 this action against thirteen defendants who protested outside Choices Women’s 4 Medical Center (“Choices”), a reproductive health clinic in Queens, New York. 5 Choices provides various medical services, including abortions. The Attorney 6 General alleges that the defendants used and threatened to use force against 7 Choices’ patients and patient escorts, obstructed patient access to the clinic, 8 followed and harassed patients near the clinic, and interfered with the clinic’s 9 operation, in violation of FACE, 18 U.S.C. § 248(a)(1); the State Act, N.Y. Penal 10 Law § 240.70(1)(a)–(b); and the City Act, N.Y.C. Admin. Code § 10-1003(a)(1)–(4), 11 (6). The Attorney General brings this action in the name of the State as parens 12 patriae and seeks declaratory, injunctive, and monetary relief. See 18 U.S.C. 13 § 248(c)(3); N.Y. Civ. Rights Law § 79-m; N.Y.C. Admin. Code § 10-1004. 14 On the same day she filed her complaint, the Attorney General filed a 15 motion for a preliminary injunction. The defendants filed motions to dismiss 16 shortly thereafter. Initially, the parties agreed to bypass the usual preliminary 17 injunction procedure, expedite discovery, and proceed to trial. But the 18 defendants later announced their intention to answer and file counterclaims if 5 1 their motions to dismiss were denied. The district court therefore restyled the 2 trial as a preliminary injunction hearing. 3 After taking evidence and hearing argument, the district court denied the 4 Attorney General’s motion for a preliminary injunction. Griepp, 2018 WL 5 3518527, at *49. The district court held that the Attorney General had failed to 6 establish a likelihood of success on the merits as to most claims. Id. at *33, *35– 7 40, *43–44, *46–48. As to the remaining claims, the district court denied an 8 injunction because irreparable harm was not “actual and imminent” and there 9 was no “reasonable likelihood that the wrong will be repeated.” Id. at *42, *48 10 (quoting New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 660 (2d Cir. 11 2015); City of New York v. Golden Feather Smoke Shop, Inc., 597 F.3d 115, 120–21 (2d 12 Cir. 2010)). In the same memorandum and order, the district court rejected 13 several claims contained in the defendants’ motions to dismiss: the court held 14 that the Attorney General had parens patriae standing to sue under the City Act, 15 Griepp, 2018 WL 3518527, at *25–29, and that FACE, the State Act, and the City 16 Act did not violate the First Amendment, id. at *29–30. 17 Both sides appealed. A divided panel of our Court affirmed in part, 18 vacated in part, and remanded for further proceedings. New York ex rel. James v. 6 1 Griepp, 991 F.3d 81 (2d Cir. 2021), reh’g granted and opinion vacated, 997 F.3d 1258 2 (2d Cir. 2021). The majority opinion disagreed with some of the district court’s 3 evidentiary rulings and interpretations of FACE, the State Act, and the City Act. 4 See id. at 96–126. It vacated the district court’s denial of a preliminary injunction 5 and remanded for further consideration. Id. at 134. That opinion, however, 6 affirmed the district court’s holdings that the Attorney General could bring a 7 parens patriae action under the City Act; that FACE, the State Act, and the City 8 Act did not violate the First Amendment; and that the Attorney General was 9 likely to succeed on the merits of her claim that defendant Brian George 10 physically obstructed patient access to Choices in violation of all three statutes. 11 See id. at 128–33. 12 An opinion concurring in part and dissenting in part would have affirmed 13 the district court’s denial of a preliminary injunction under FACE and the State 14 Act but would have reversed the district court’s holding that the Attorney 15 General could sue to enforce the City Act. See id. at 135–55 (Livingston, C.J., 16 concurring in part and dissenting in part). It therefore did not consider the City 17 Act and its possible bearing on the issuance of a preliminary injunction. See id. at 18 137 n.3, 139. 7 1 Another concurring opinion indicated that the Attorney General’s 2 authority to sue under the City Act was “uncertain,” and that such uncertainty 3 “strongly support[ed]” certification to the New York Court of Appeals. Id. at 4 134–35 (Calabresi, J., concurring). Nonetheless, the author of that opinion was 5 “willing to forgo certification,” albeit “reluctantly.” Id. at 135. 6 7 The defendants asked us to rehear the case. We granted their petitions for rehearing and vacated our prior opinion. Griepp, 997 F.3d at 1258. DISCUSSION 8 9 This is a case about a preliminary injunction. “It frequently is observed 10 that a preliminary injunction is an extraordinary and drastic remedy, one that 11 should not be granted unless the movant, by a clear showing, carries the burden 12 of persuasion.” 11A C. Wright, A. Miller & M. Kane, Federal Practice and 13 Procedure § 2948 (3d ed. 2021) (footnotes omitted); see also Mazurek v. Armstrong, 14 520 U.S. 968, 972 (1997). In deciding whether to grant a preliminary injunction, a 15 “district court has wide discretion,” and “this Court reviews the district court’s 16 determination only for abuse of discretion.” Moore v. Consol. Edison Co. of N.Y., 17 409 F.3d 506, 511 (2d Cir. 2005). 8 1 In evaluating the motion for a preliminary injunction, the district court 2 found that some of the actions taken by the defendants violated the relevant 3 statutes and others did not. Once this case reaches the merits stage, the district 4 court may choose to reconsider its findings, either way, as to violations. It may 5 be particularly appropriate to reconsider whether there were violations of the 6 City Act. This is because, before the district court, the Attorney General 7 originally had argued that the City Act’s provisions “mirror[ed]” similar 8 provisions in FACE and the State Act, Griepp, 2018 WL 3518527, at *34, 40, while, 9 on appeal, she contended that the City Act’s provisions are broader in scope than 10 11 their FACE and State Act analogs. Crucially, however, at this stage and as to the violations it did find, the 12 district court concluded that the Attorney General had not demonstrated 13 irreparable harm. Some members of this Court might have reached different 14 conclusions, both as to the existence of violations and as to the appropriateness 15 of a preliminary injunction. But many of the issues are close ones, and we cannot 16 say that the district court abused its considerable discretion in denying a 17 preliminary injunction. Cf. United States v. Ferguson, 246 F.3d 129, 133 (2d Cir. 18 2001) (“[W]e are mindful that a judge has not abused her discretion simply 9 1 because she has made a different decision than we would have made in the first 2 instance.”). 3 We note that the questions as to whether the Attorney General can sue 4 under the City Act, the scope of the City Act, and its constitutional validity— 5 should it be read to be significantly broader than FACE and the State Act— 6 involve difficult, unresolved, issues of state law. But we do not deem it 7 appropriate to certify to the New York Court of Appeals or to try to resolve these 8 issues ourselves at the instant preliminary injunction stage. 9 Accordingly, we affirm the denial of the Attorney General’s motion for a 10 preliminary injunction and remand to the district court for a full consideration of 11 the merits. In doing so, and consistent with prior holdings of our Court, we do 12 not specifically affirm or question the array of evidentiary and factual findings 13 made by the district court. Rather, we hold simply that the district court did not 14 abuse its discretion in finding that preliminary injunctive relief was not 15 warranted at this time. See, e.g., Brennan's, Inc. v. Brennan's Rest., L.L.C., 360 F.3d 16 125, 129 (2d Cir. 2004) (“Although we are doubtful about certain aspects of the 17 district court's findings, we are at the same time persuaded that [the district 10 1 court’s] ultimate determination that plaintiff was not entitled to a preliminary 2 injunction did not constitute an abuse of [its] discretion.”). 3 CONCLUSION 4 We AFFIRM the district court’s denial of a preliminary injunction and 5 REMAND this case for consideration on the merits. 11
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