     16-3028
     Martins v. Pidot et. al.

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 16th day of September, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                BARRINGTON D. PARKER,
 8                DEBRA A. LIVINGSTON,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       JACK MARTINS,
13                Defendant-Intervenor-
14                Appellant,
15
16                    -v.-                                               16-3028
17
18       PHILIP PIDOT, NANCY HAWKINS, STEVEN
19       AXELMAN,
20                PlaintiffS-Appellees,
21
22                    AND
23
24       NEW YORK STATE BOARD OF ELECTIONS,
25       SUFFOLK COUNTY BOARD OF ELECTIONS,
26       NASSAU COUNTY BOARD OF ELECTIONS,
27       BOARD OF ELECTIONS IN THE CITY OF NEW
28       YORK, PETER KOSINSKI, DOUGLAS

                                                  1
 1   KELLNER, ANDREW J. SPANO, GREGORY P.
 2   PETERSON, TODD D. VALENTINE, ROBERT
 3   A. BREHM, IN THEIR OFFICIAL
 4   CAPACITIES AS BOARD MEMBERS,
 5   COMMISSIONERS, AND EXECUTIVE
 6   DIRECTORS OF THE NEW YORK STATE BOARD
 7   OF ELECTIONS,
 8            Defendants-Appellees
 9
10            AND
11
12   TOM SUOZZI
13            Intervenor-Appellee*
14
15   - - - - - - - - - - - - - - - - - - - -X
16
17   FOR APPELLANT JACK MARTINS:         JASON TORCHINSKY, SHAWN
18                                       TOOMEY, STEVE ROBERTS,
19                                       Holtzman Vogel Joesefiak
20                                       Torchinsky PLLC, Warrenton,
21                                       Virginia
22
23                                       PAUL DEROHANNESIAN,
24                                       DANIELLE R. SMITH,
25                                       DerOhannesian &
26                                       DerOhannesian, Albany, New
27                                       York
28
29   FOR APPELLEES PHILLIP PIDOT, NANCY HAWKINS, STEVEN AXELMAN:
30                                   JERRY H. GOLDFEDER, DAVID
31                                   V. SIMUNOVICH, Stroock,&
32                                   Stroock & Lavan LLP, New
33                                   York, New York
34
35   FOR APPELLEE BOARD OF ELECTIONS IN THE CITY OF NEW YORK:
36                                   JANET L. ZALEON, for
37                                   Zachary W. Carter,
38                                   Corporation Counsel of the
39                                   City of New York, New York,
40                                   New York (Susan Greenberg,
41                                   on the brief)
42


         *
          The Clerk of Court is directed to amend the caption as
     set forth above.
                                     2
 1   FOR APPELLEES NEW YORK STATE BOARD OF ELECTIONS, PETER
 2   KOSINSKI, DOUGLAS KELLNER, ANDREW J. SPANO, GREGORY P.
 3   PETERSON, TODD D. VALENTINE, ROBERT A. BREHM, IN THEIR
 4   OFFICIAL CAPACITIES AS BOARD MEMBERS, COMMISSIONERS, AND
 5   EXECUTIVE DIRECTORS OF THE NEW YORK STATE BOARD OF
 6   ELECTIONS:
 7                                   BRIAN QUAIL, WILLIAM
 8                                   MCCANN, JR, New York, New
 9                                   York
10
11
12   FOR APPELLEE TOM SUOZZI:
13                                      ABHA KHANNA, MARTIN E.
14                                      GILMORE, Perkins Coie LLP,
15                                      New York, New York
16
17       Appeal from judgment of the United States District

18   Court for the Northern District of New York (Scullin, J.).

19       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

20   AND DECREED that the injunction of the district court be

21   VACATED, and that the case is remanded with direction to

22   dismiss.

23       This appeal, heard on an expedited basis, is taken from

24   an injunction that directs a special election for the

25   Republican nomination to stand for Congress in the Third

26   Congressional District of New York.    Appellant Jack Martins

27   stood unopposed in the Republican general primary on June 28

28   while litigation was ongoing in the New York state courts as

29   to whether a potential opponent for the Republican

30   nomination, Phillip Pidot, had submitted sufficient

31   signatures to get on the ballot.    The signatures on Pidot’s


                                  3
1    petition were validated by the state court four days before

2    the primary, by which point it was found to be impossible to

3    make the arrangements for Pidot to appear on the ballot and

4    to arrange compliance with the other requirements of state

5    and federal law.    After the original primary date, the

6    United States District Court for the Northern District of

7    New York (Scullin, J.) issued an injunction requiring that

8    the primary election, with Pidot now on the ballot, be

9    conducted on October 6.

10       Appellant Martins challenges the injunction on several

11   grounds, including voter confusion, the burden holding an

12   election would place on the local boards of election, and

13   the brevity of the interval between the new primary and the

14   general election.

15       We conclude that Martins has standing to appeal the

16   district court’s order; that the Rooker-Feldman doctrine

17   does not apply because Pidot was a state court winner, and,

18   in any event, did not invite review of the state court’s

19   legal judgment; that collateral estoppel is not a bar to

20   this suit, in part because the district court found no

21   privity between Pidot and the voter plaintiffs and in part

22   because the issues involved in the federal action–-i.e.

23   UOCAVA and the First Amendment–-were neither actually

24   litigated nor necessarily decided in the state action; and

                                    4
1    that Pidot has not precipitated delays sufficient to entail

2    the application of the doctrine of laches.     We assume

3    arguendo that Pidot’s suit is not barred by res judicata.

4        Our review of the record indicates that the district

5    court’s resolution of Pidot’s application for an     injunction

6    failed to address the applicable injunction standards.

7        A party seeking a preliminary injunction must

8    ordinarily establish (1) irreparable harm, (2) a likelihood

9    of success on the merits, and (3) that issuance of an

10   injunction is in the public interest.   See New York ex rel.

11   Schneiderman v. Actavis PLC, 787 F.3d 638, 650 (2d Cir.

12   2015).   The district court’s decision here to order a

13   special primary is a form of permanent injunction.     See Pope

14   v. County of Albany, 687 F.3d 565, 569-70 (2d Cir. 2012).

15   “The requirements for a permanent injunction are essentially

16   the same as for a preliminary injunction, except that the

17   moving party must demonstrate actual success on the merits.”

18   New York Civil Liberties Union v. New York City Transit

19   Auth., 684 F.3d 286, 294 (2d Cir. 2011).     We properly

20   reverse an order of a permanent injunction where the

21   district court decision rests on an error of law.     Pope, 687

22   F.3d at 570-71.

23       Our decision in Rivera-Powell v. New York City Board of

24   Elections, 470 F.3d 458 (2d Cir. 2006), forecloses Pidot’s

                                   5
1    claim.   After review, we conclude that Martins did not waive

2    his Rivera-Powell argument in the district court, and that

3    we can construe Pidot’s First Amendment claim in this case

4    as analogous to a due process claim, as was done in Rivera-

5    Powell itself. Id. at 469.     Under Rivera-Powell, “when a

6    candidate raises a First Amendment challenge to his or her

7    removal from the ballot based on the allegedly unauthorized

8    application of an admittedly valid restriction,” such as

9    here, “the state has satisfied the First Amendment if it has

10   provided due process.”     Id. at 469-70.   Pidot does not

11   allege that the state failed to afford him due process.       We

12   therefore vacate the injunction on that ground.

13       Further, Pidot failed     to establish–-and the district

14   court failed to find–-that the balance of equities tipped in

15   his favor or that the injunction would be in the public

16   interest.   Accordingly, Pidot is not entitled to the

17   injunctive relief which he seeks.

18       For the foregoing reasons, and finding no merit in

19   Pidot’s other arguments, we hereby VACATE the order of the

20   district court and direct the court to enter judgment in

21   favor of the defendants.

22                                 FOR THE COURT:
23                                 CATHERINE O’HAGAN WOLFE, CLERK
24



                                     6
