566 F.3d 442 (5th Cir. 2009), 08-50231, Byrum v. Landreth

Docket Nº:08-50231.
Citation:566 F.3d 442
Opinion Judge:EDITH H. JONES, Chief Judge:
Party Name:Vickee BYRUM; Joel Mozersky; Veronica Koltuniak; Nancy Pell, Plaintiffs-Appellants, v. Gordon E. LANDRETH, in his official capacity as Chairman of the Texas Board of Architectural Examiners; Alfred Vidaurri, Jr., in his official capacity as Vice-Chairman of the Texas Board of Architectural Examiners; Rosemary A. Gammon, in her official capacity as
Attorney:Clark M. Neily, III (argued), Arlington, VA, Cindy Olson Bourland, Merica & Bourland, Austin, TX, for Plaintiffs-Appellants. Marianna Grayson, Office of Atty. Gen, Gen. Lit. Div., Erika M. Laremont, Eric L. Vinson (argued), Austin, TX, for Defendants-Appellees.
Judge Panel:Before JONES, Chief Judge, JOLLY, Circuit Judge and CARDONE, District Judge[*].
Case Date:April 22, 2009
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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566 F.3d 442 (5th Cir. 2009)

Vickee BYRUM; Joel Mozersky; Veronica Koltuniak; Nancy Pell, Plaintiffs-Appellants,

v.

Gordon E. LANDRETH, in his official capacity as Chairman of the Texas Board of Architectural Examiners; Alfred Vidaurri, Jr., in his official capacity as Vice-Chairman of the Texas Board of Architectural Examiners; Rosemary A. Gammon, in her official capacity as Treasurer of the Texas Board of Architectural Examiners; Robert Kyle Gardener, in his official capacity as member of the Texas Board of Architectural Examiners; Janet Parnell, in her official capacity as member of the Texas Board of Architectural Examiners; Peter L. Pfeiffer, in his official capacity as member of the Texas Board of Architectural Examiners; Diane Steinbrueck, in her official capacity as member of the Texas Board of Architectural Examiners; Peggy Lewene Vassberg, in her official capacity as member of the Texas Board of Architectural Examiners; James S. Walker II, in his official capacity as member of the Texas Board of Architectural Examiners, Defendants-Appellees.

No. 08-50231.

United States Court of Appeals, Fifth Circuit.

April 22, 2009

Page 443

[Copyrighted Material Omitted]

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Clark M. Neily, III (argued), Arlington, VA, Cindy Olson Bourland, Merica & Bourland, Austin, TX, for Plaintiffs-Appellants.

Marianna Grayson, Office of Atty. Gen, Gen. Lit. Div., Erika M. Laremont, Eric L. Vinson (argued), Austin, TX, for Defendants-Appellees.

Appeal from the United States District Court for the Western District of Texas.

Before JONES, Chief Judge, JOLLY, Circuit Judge and CARDONE, District Judge[*].

EDITH H. JONES, Chief Judge:

In this commercial speech case, the appellants would prevent Texas from enforcing its interior design " titling" law, which prohibits unlicensed practitioners from using the terms " interior designer" or " interior design" to describe their trade and the services they provide but does not limit who may practice interior design. The district court denied their motions for preliminary injunction and summary judgment. We have jurisdiction over the former order, 28 U.S.C. § 1292(a), but not over the latter except by exercising pendent appellate jurisdiction.

Because the district court abused its discretion by denying the preliminary injunction, we reverse for entry of relief. We decline, however, to exercise pendent appellate jurisdiction to resolve the appellants' summary judgment motion.

I. Background

The plaintiffs are experienced and accomplished interior designers.1 Texas law does not interfere with their professional practice, TEX. OCC.CODE § 1051.604, but without being licensed, they may not advertise or represent themselves using the words " interior designer" or " interior design." 2 See TEX. OCC.CODE § 1053.151;

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22 TEX. ADMIN. CODE § 5.131. 3 Since 1991, Texas has required that to become licensed, a prospective interior designer must graduate from an educational program recognized and approved by the Texas Board of Architectural Examiners (" TBAE" ); possess appropriate professional experience; pass an examination adopted by the TBAE; and pay the required fee. TEX. OCC.CODE § 1053.152, .154-.155; 22 TEX. ADMIN. CODE § 5.31. While all of the plaintiffs have been practicing interior design for some time, none has qualified educationally to sit for the exam.

The appellants sued Texas officials, members of the TBAE, to challenge these Texas " titling" laws for infringing their First Amendment right to engage in commercial speech. The parties filed cross motions for summary judgment, and the plaintiffs requested a preliminary injunction. Based on the magistrate judge's report and recommendations, the district court denied the motion for preliminary injunction and held that neither party met their respective evidentiary burdens for summary judgment. The interior designers have appealed.

II. Standard of Review

" Although the ultimate decision whether to grant or deny a preliminary injunction is reviewed only for abuse of discretion, a decision grounded in erroneous legal principles is reviewed de novo. " Women's Med. Ctr. of Nw. Houston v. Bell, 248 F.3d 411, 419 (5th Cir.2001). Whether free speech rights have been infringed presents a mixed question of law and fact reviewed de novo, and when a preliminary injunction turns on a mixed question of law and fact, it, too, is reviewed de novo. Speaks v. Kruse, 445 F.3d 396, 399 & n. 8 (5th Cir.2006).

III. Discussion

A. Preliminary Injunction

A preliminary injunction is an extraordinary remedy that should only issue if the movant establishes:

(1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest.

Speaks v. Kruse, 445 F.3d 396, 399-400 (5th Cir.2006). The district court found that the appellants failed to show a likelihood of success on the merits. There appears to be no dispute over the appellants' entitlement to relief under the other criteria if their First Amendment rights were violated. See Elrod v. Burns, 427 U.S. 347, 369, 373, 96 S.Ct. 2673, 2689-90 (1976).

Regulations of commercial speech must comply with the Central Hudson test. See 44 Liquormart Inc. v. Rhode Island, 517 U.S. 484, 500, 116 S.Ct. 1495, 1507, 134 L.Ed.2d 711 (Stevens, J., plurality opinion) and id. at 528, 116 S.Ct. at 1521 (O'Connor, J., concurring) (applying

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Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 563-64, 100 S.Ct. 2343, 2350, 65 L.Ed.2d 341 (1980)). The first part of the test is really a threshold determination whether the speech is constitutionally protected because it is either true or only potentially misleading. Thompson v. Western States Med. Ctr., 535 U.S. 357, 367, 122 S.Ct. 1497, 1504, 152 L.Ed.2d 563 (2002). If the speech is protected, the regulation must satisfy the following three requirements: (1) the asserted government interest in the regulation must be substantial; (2) the regulation must directly advance the governmental interest served; and (3) the regulation may not be broader than necessary to advance that governmental interest. Cent. Hudson, 447 U.S. at 566, 100 S.Ct. at 2351.

In a single memorandum opinion, the district court first addressed the parties' cross-motions for summary judgment concerning the Central Hudson factors. The court expressly agreed with the magistrate judge that the State did not bear its summary judgment burden to prove either that the appellants' speech lacked First Amendment protection; or that the titling statute directly advances the State's interest in consumer protection. The district court adopted without discussion the magistrate judge's finding, on Central Hudson prong two, that prohibiting appellants' speech would directly advance the State interest, and on Central Hudson prong three, that the State lacked proof on the " fit" between the speech prohibition and the State's interest.

The State's failure to carry its summary judgment burden did not, however, persuade the district court to grant summary judgment to appellants or award preliminary injunctive relief. As the court perfunctorily put it:

... Defendants' failure to prevail on their summary judgment motion does not indicate Plaintiffs prevail on theirs, and the conclusion Plaintiffs have succeeded on the merits is therefore premature. Accordingly, the Magistrate Judge properly recommended denying Plaintiffs' motion for preliminary injunction because they have not shown a substantial likelihood of success on the merits.

Unfortunately, the district court's reasoning is confused. A plaintiff is not required to prove its entitlement to summary judgment in order to establish " a substantial likelihood of success on the merits" for preliminary injunction purposes. See ICEE Distribs., Inc. v. J& J Snack Foods Corp., 325 F.3d 586, 596 n. 34 (5th Cir.2003) (distinguishing actual success from likelihood of success on merits). The confusion is even more pronounced because the State had the burden to prove all elements of the Central Hudson test. Although the plaintiffs bear the burden on the preliminary injunction factors, " [i]t is well established that the party seeking to uphold a restriction on commercial speech carries the burden of justifying it." Edenfield v. Fane, 507 U.S. 761, 770, 113 S.Ct. 1792, 1800, 123 L.Ed.2d 543 (1993) ( quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 71 n. 20, 103 S.Ct. 2875, 2882 n. 20, 77 L.Ed.2d 469 (1983) (internal quotation marks omitted)). Thus, when considering the likelihood of success, the district court should have inquired whether there is a sufficient likelihood the State will ultimately fail to prove its regulation constitutional. See Ashcroft v. ACLU, 542 U.S. 656, 666, 124 S.Ct. 2783, 2791-92, 159 L.Ed.2d 690 (2004). Cf. Speaks, 445 F.3d at 400. Applying the proper standards, we have little difficulty in concluding that appellants are likely to succeed on their claim because the State has not shown its ability to justify the statutes' constitutionality.

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The State first attempts to prove, contrary to the district court's determination, that the speech at issue is not constitutionally protected because it is both inherently and actually misleading. See Joe Conte Toyota, Inc. v. La. Motor Vehicle Comm'n, 24 F.3d 754, 756 (5th Cir.1994) (citing Peel v. Attorney Disciplinary Comm'n, 496 U.S. 91, 106, 110 S.Ct. 2281, 2290, 110 L.Ed.2d 83 (Stevens, J., plurality opinion) and id. at 112, 110 S.Ct. 2281 (Marshall, J., concurring)). The State advances a circular argument that the speech inherently tends to mislead consumers. It runs: Texas created a licensing regime; therefore, unlicensed...

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