Kroupa v. Nielsen

• Decision Date: 25 September 2013
• Docket Number: No. 12–2843.,12–2843.
• Citation: 731 F.3d 813
• Parties: Greg KROUPA, guardian ad litem of B.K., a minor, Plaintiff–Appellee v. Peter A. NIELSEN, individually and in his official capacity as Assistant Director of 4–H Youth Development; Rod Geppert, individually and in his official capacity as Brule County Extension 4–H representative, Defendants–Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

731 F.3d 813

Greg KROUPA, guardian ad litem of B.K., a minor, Plaintiff–Appellee

v.Peter A. NIELSEN, individually and in his official capacity as Assistant Director of 4–H Youth Development; Rod Geppert, individually and in his official capacity as Brule County Extension 4–H representative, Defendants–Appellants.

No. 12–2843.

United States Court of Appeals,

Eighth Circuit.

Submitted: June 13, 2013.

Filed: Sept. 25, 2013.

John Pekas, Rollyn H. Samp, Samp Law Office, Sioux Falls, SD, for Plaintiff–Appellee.

Mitchel L. Martin, Gary P. Thimsen, Woods & Fuller, Sioux Falls, SD, for Defendants–Appellants.

Before LOKEN, BRIGHT, and BYE, Circuit Judges.

LOKEN, Circuit Judge.

Giving no notice or opportunity to be heard, a secret committee of the South Dakota State University (“SDSU”) Cooperative Extension Service barred B.K., a 15–year–old member of the South Dakota 4–H program, from further showing livestock at 4–H exhibitions. The letter advising of this decision stated that the punishment was imposed because B.K. “misrepresented the ownership” of her winning swine entry at the 2011 South Dakota State Fair. B.K.'s father, Greg Kroupa, commenced this 42 U.S.C. § 1983 action, including as defendants the unincorporated 4–H Association and two 4–H officials, Peter A. Nielsen and Rodney Geppert, who communicated this punishment to the Kroupas and refused their request that B.K. be allowed to appeal the adverse decision.

Based on evidence that the South Dakota 4–H program is part of SDSU and controlled by its Board of Regents, seeS.D. Codified Laws §§ 13–54–1, 13–54–9, the district court ¹ dismissed the institutional defendant and official capacity damage claims against Nielsen and Geppert on grounds of sovereign immunity. Those issues are not before us. The court then granted Kroupa preliminary injunctive relief from the claimed denial of B.K.'s constitutional right to procedural due process. Applying well-recognized preliminary injunction standards, see Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109, 113 (8th Cir.1981) (en banc), the court enjoined Nielsen and Geppert, acting in their official capacities, “from interfering with B.K.'s participation in any 4–H activities until further order of the court.” Kroupa v. 4–H, 877 F.Supp.2d 804, 823 (D.S.D.2012).

Defendants appealed and moved for a stay of the injunction pending appeal. In opposition, Kroupa submitted evidence of the harm B.K. would have suffered had she not been allowed to compete in the 2012 season. The district court denied the stay in a thorough second opinion which defendants did not appeal. 877 F.Supp.2d at 823–27. However, defendants continued their appeal of the preliminary injunction order, without seeking a stay from this court. The 2013 livestock exhibition season has now come and gone. The district court docket sheets reflect on-going summary judgment proceedings in the district court. Reviewing the grant of a preliminary injunction under the Dataphase standards, we affirm.

I.

At the preliminary injunction hearing, Kroupa as moving party presented testimony by four witnesses and five documentary exhibits. We briefly summarize the lengthy testimony:

Kroupa testified that his family breed, raise, and show livestock in Brule County, South Dakota. His four children have successfully participated in 4–H and other livestock competitions in South Dakota and elsewhere. B.K., the youngest child, joined 4–H when she was eight years old. She has won more than $20,000 in prize money from livestock shows, including $22,000 for showing the reserve champion steer at a livestock show in Louisville in 2009. B.K. testified she plans to use that money for college and has stopped participating in sports to devote her time to raising and training animals. She hopes eventually to take over the family livestock business.

Beginning in April 2011, B.K. trained a belted barrow swine, which she named “Moe,” for entry in livestock shows. B.K. showed Moe at the Brule County Fair in August. She qualified for the South Dakota State Fair from September 1 to 6. Moe won reserve grand honors in the 4–H division followed by the champion market barrow prize at the Future Farmers of America show at the conclusion of the State Fair. After the fair, several members of B.K.'s 4–H club accused her of cheating, claiming the pig she showed at the State Fair was not Moe but another belted barrow swine with a cauliflower ear that had come from another state fair.² The repeated messages and emails were so abusive and distressing that B.K. deleted her Facebook page and complained to her parents.

Later in September, Kroupa contacted Geppert, the Extension Officer for Brule County, to discuss how to stop the abuse of his daughter. Kroupa testified Geppert said he would talk to Nielsen and the two “would get back to me.” Nielsen did so and said “if I would help them with the problems, that I would be asked to be on the ethics committee, and to try to ... stop the dishonesty that was going on at the fairgrounds.” Kroupa said he responded to Nielsen, “A simple solution to your problem is implementing DNA” sampling of the champions, as is common in other States.

Kroupa testified that his next contact was when B.K. received the October 3 decision letter signed by Nielsen as Assistant Director, 4–H Youth Development, for the South Dakota Cooperative Extension Service. The letter stated:

This letter is to inform you that you will no longer be allowed to participate in South Dakota 4–H exhibition programs.... After being shown pictures on September 9, 2011, your father, Mr. Greg Kroupa, admitted to Mr. Rod Geppert and then, to Mr. Peter Nielsen that you have not owned or cared for your recent swine entry for the project season. He also admitted that your swine entry had been submitted and competed in this year's Missouri State Fair. The South Dakota 4–H Livestock Ethics Committee met on September 20, 2011 and concluded that you misrepresented the ownership of this animal and violated the code of ethics.

Based on the events surrounding the misrepresentation of ownership ... the State 4–H Office has permanently removed you from the South Dakota 4–H exhibition program and any future eligibility or participation in such programs. In addition, you are ineligible to receive any awards or premium monies from the 4–H Swine Project or 4–H Beef Project areas on the 2011 South Dakota State Fair.

Kroupa testified that neither he nor B.K. was notified of the September 20 meeting or even that a Livestock Ethics Committee was considering this punishment. After B.K. received the letter, Kroupa drove to Brookings to “see if I could visit with Peter Niels[e]n.” Nielsen told him the decision was final; there could be no appeal. He declined to identify the members of the Livestock Ethics Committee. B.K. and Kroupa directly denied the allegations in the October 3 letter. Kroupa denied being shown pictures on September 9. B.K. testified that she raised and trained Moe in 2011 and that Moe was the prize winning pig she showed at the State Fair. B.K. further testified that she was not provided notice of the Livestock Ethics Committee meeting, was never given an opportunity to respond to charges she had cheated at the State Fair or misrepresented animal ownership, and never even spoke with Nielsen before or after he sent the October 3 letter.

Kroupa testified that, but for the ban, B.K. would have been eligible to participate in 4–H programs until she turns 19 in December 2014. Although the 4–H ban does not preclude her from participating in competitions sponsored by other organizations, such as the Future Farmers of America, or “open” competitions that have no age restrictions, some shows ban competitors who have been declared ineligible by 4–H. After the ban, B.K. continued to participate in other 4–H activities. However, when she tried to participate in a 4–H “weigh-in” event in May 2012, an SDSU Extension Officer weighed B.K.'s animal but refused to sign the weight slip, and Nielsen wrote Kroupa that “[p]articipation at this weigh-in does not change the status of any other 4–H eligibility decisions.”

After Kroupa and B.K. testified, Dawn Cable, an adult 4–H leader in Brule County for over twenty years and a 4–H member since she was eight years old, testified that she was advised by Geppert that B.K. “was banned from 4–H” shows and that she had never “heard of anything like this before.” Chris Hauger, who competes with Kroupa in raising show pigs, testified that, one week before the State Fair, he was in the Kroupa “show barn” and saw Moe, the barrow pig with a “crimped” ear.

Prior to the hearing, defendants submitted an affidavit by Nielsen averring that the decision to bar B.K. from participation in 4–H livestock shows “was based upon a thorough investigation by myself and Rod Geppert, which resulted in strong evidence ... that B.K. had shown a swine in the South Dakota State Fair that had previously been shown in the Missouri State Fair,” a fact Greg Kroupa admitted “when I confronted [him].” At the hearing, defendants briefly cross examined Kroupa's witnesses but offered no additional evidence. Thus, the preliminary injunction record on appeal is, by defendants' choice, factually one-sided. After briefing and oral argument, the district court granted the preliminary injunction. On appeal, defendants cite facts submitted by Kroupa in opposing their motion for a stay pending appeal. But defendants did not appeal the denial of that motion, so these subsequent events are not part of the preliminary injunction record on appeal.

II.

“Whether a preliminary injunction should issue involves consideration of (1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.” Dataphase, 640 F.2d at 113. A...