Bailey v. Systems Innovation, Inc.
| Decision Date | 21 July 1988 |
| Docket Number | 88-5113,Nos. 88-5091,s. 88-5091 |
| Citation | 852 F.2d 93 |
| Parties | 15 Media L. Rep. 1756 Don BAILEY, Nick J. Ficco, Jr., Rudy M. Grubesky, James M. Shannon, Robert J. Yanuzzi, Robert E. Frederick, Timothy Baker, Anthony Marceca, and Ben Livingood, Petitioners in 88-5091, v. SYSTEMS INNOVATION, INC., Bryon D. Lesjack, Maurice G. Dutton, Ph.D., and Michael H. Dugan, Milan Sudor and Richard Guth, Respondents, and The Honorable Sylvia H. Rambo, Judge of the United States District Court for the Middle District of Pennsylvania, Nominal Respondent. SYSTEMS INNOVATION, INC., Bryon D. Lesjack, Maurice G. Dutton, Ph.D. and Michael H. Dugan, v. Don BAILEY; Nick J. Ficco, Jr.; Rudy M. Grubesky; James M. Shannon; Robert J. Yanuzzi; Robert E. Frederick; Timothy Baker; Anthony Marceca; Ben Livingood; Milan Sudor and Richard Guth, Don Bailey; Nick J. Ficco, Jr.; Rudy M. Grubesky; James M. Shannon; Robert J. Yanuzzi; Robert E. Frederick; Timothy Baker; Anthony Marceca; Ben Livingood, Appellants in 88-5113. |
| Court | U.S. Court of Appeals — Third Circuit |
James L. McAneny (argued), Com. of Pa., Dept. of Auditor General, Harrisburg, Pa., for petitioners/appellants.
James J. Kutz (argued), Shearer, Mette, Evans & Woodside, Harrisburg, Pa., for appellee.
Before HIGGINBOTHAM, STAPLETON and GREENBERG, Circuit Judges.
An official and various employees of the Commonwealth of Pennsylvania, and two individuals, who are defendants in a pending civil action, claim that their first amendment rights to freedom of speech are violated by a district court order that imposes upon them the requirements of Middle District of Pennsylvania Local Rule 118.7 ("Rule 118.7"), governing "Extrajudicial Statements by Attorneys in Civil Cases". They have filed both a petition for writ of mandamus and an interlocutory appeal from the district court's order that applies the rule to these defendants and denies plaintiff-appellee's motion for a temporary restraining order.
We hold that the district court order is appealable under 28 U.S.C. Sec. 1292(a)(1). The appeal constitutes "other adequate means to attain the relief ... desire[d]," Kerr v. United States District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976), and accordingly, the petition for writ of mandamus will be denied. We further hold that the provisions of Rule 118.7 as applied to the litigants in this civil suit violate their rights to freedom of speech. We will therefore vacate in part the order of the district court insofar as it imposes that rule on the litigants and remand the matter for further proceedings.
Neither party disputes the relevant facts. Systems Innovation, Inc. ("SII") is a Pennsylvania corporation that markets and services various types of law enforcement products, including speed timing devices and chemical breath-test equipment. It also repairs, services and certifies the accuracy of these devices for its customers, which are largely municipal law enforcement agencies.
The Auditor General of the Commonwealth of Pennsylvania, various employees of his Department, and two private individuals ("Commonwealth litigants") are defendants in a civil suit brought by SII and its principal officers. The lawsuit stems from two press conferences the Auditor General held in December 1987 and January 1988 in which he announced the results of his office's investigations into SII's performance under state and local government contracts. Appendix at Exhibits C & D. At these conferences, the Auditor General recommended that all contracts awarded to SII be reviewed, and announced that the Pennsylvania Attorney General would be conducting an investigation into the company. Id. He also issued press releases concerning the breath test equipment. Id. at Exhibit E. Copies of these releases were subsequently widely distributed to SII's customers.
On January 25, 1988, SII filed a complaint in federal district court for the Middle District of Pennsylvania, 1 and simultaneously filed motions for a temporary restraining order ("TRO") and for a preliminary injunction. Appendix at 116-38; 141-48. Both the TRO motion and the motion for preliminary injunction sought to prevent the Commonwealth litigants from
(a) communicating, directly or indirectly, with customers or potential customers of plaintiffs, (b) holding additional press conferences or issuing additional press releases on the matters which have already been referred to the Office of Attorney General, and (c) investigating further SII and/or its offices for criminal wrongdoing.
* * *
* * *
Id. at 139-40, 146-47. Following a hearing, the district court denied the TRO motion on January 28, 1988. The district court's opinion addressed the testimony of SII's president that subsequent to the press conferences and releases, sales had declined, negative press in trade journals had appeared, bids were being deferred and some contracts had been cancelled. Id. at 167, 169. Nevertheless, the district court, citing ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir.1987), found that this testimony did not sufficiently establish "irreparable harm" to justify granting injunctive relief. Appendix at 169.
The district court concluded that
Rule 118.7 of the Rules of Court for the United States District Court for the Middle District of Pennsylvania, which this court will make applicable to the litigants as well as the attorneys, will sufficiently protect the plaintiffs so that the more drastic remedy of injunctive relief will not be required.
Appendix at 169. Although the district court opinion appeared to refer to both the request for TRO and the request for a preliminary injunction, its accompanying order simply denied the TRO motion and imposed Rule 118.7 "upon the litigants of this case as well as counsel." 2 Id. at 164. On the same day that the district court issued its order, SII moved to withdraw the motion for preliminary injunction. Id. at 170. The district court granted the motion. Id. at 174.
On February 5, 1988, the Commonwealth litigants filed a petition for writ of mandamus in this Court and a notice of appeal. They request this Court to issue a writ of mandamus directing the district court to vacate that part of its order imposing Rule 118.7 upon the Commonwealth litigants, or in the alternative, to reverse that part of the order on appeal. We consolidated the petition and the appeal for disposition.
The questions of whether we have mandamus jurisdiction and whether we have jurisdiction to decide this interlocutory appeal are intertwined. We may issue writs of mandamus pursuant to the All Writs Act. 3 28 U.S.C. Sec. 1651(a) (1982). This Court, as well as others, has invoked mandamus jurisdiction to strike down district court orders that were found to violate the first amendment. See Rodgers v. United States Steel Corp., 536 F.2d 1001, 1006 (3d Cir.1976) ( ; accord Coles v. Marsh, 560 F.2d 186, 189 (3d Cir.), cert. denied, sub nom. Blue Cross of Western Pennsylvania v. Marsh, 434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.2d 479 (1977); CBS v. Young, 522 F.2d 234, 237 (6th Cir.1975) (). These decisions, however, do not indicate that we should automatically find such jurisdiction here. The exercise of our mandamus power is limited to situations in which
the party seeking issuance of the writ ha[s] no other adequate means to attain the relief he [or she] desires ... and ... he [or she] satisf[ies] "the burden of showing that his [or her] right to issuance of the writ is 'clear and indisputable.' "
Kerr v. United States District Court, 426 U.S. at 403, 96 S.Ct. at 2124 (citations omitted); DeMasi v. Weiss, 669 F.2d 114, 117 (3d Cir.1982). Because we find that we have appellate jurisdiction to review the district court order, mandamus review is unnecessary. "[W]hile a function of mandamus in aid of appellate jurisdiction is to remove obstacles to appeal, it may not appropriately be used merely as a substitute for the appeal procedure prescribed by ... statute." Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943).
The Commonwealth litigants contend that in the alternative to mandamus jurisdiction, we have appellate jurisdiction pursuant to 28 U.S.C. Sec. 1292(a)(1). 4 To the extent that we interpret the district court's order as one simply denying a motion for TRO, it is unappealable under this provision. See Office of Personnel Management v. American Federation of Government Employees, AFL-CIO, 473 U.S. 1301, 1303-05, 105 S.Ct. 3467, 3468-69, 87 L.Ed.2d 603 (1985); United States v. Crusco, 464 F.2d 1060, 1062 (3d Cir.1972); Richardson v. Kennedy, 418 F.2d 235 (3d Cir.1969). In that regard, we note that the district court allowed SSI to withdraw its motion for preliminary injunctive relief. It thus appears that no injunction is before us. Nevertheless, in our analysis of our appellate jurisdiction pursuant to 28 U.S.C. Sec. 1292(a)(1), we are not constrained by the district court's characterization of its order. See generally New Jersey State Nurses Ass'n v. Treacy, 834 F.2d 67, 69-70 (3d Cir.1987) (). As well as denying the TRO motion, the district court's order imposed the provisions of Rule 118.7 on the Commonwealth litigants (as well as on their attorneys). These provisions are essentially, if not explicitly, injunctive.
Rule 118.7 provides:
A lawyer or law firm associated with a civil action shall not during its...
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