                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-24-2008

Policastro v. Kontogiannis
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1471




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                                                           NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT


                                 No. 06-1471


                          ANDREW POLICASTRO,
                                         Appellant

                                      v.

                   DR. THEODORA P. KONTOGIANNIS,
                       Principal Tenafly High School;
                   TENAFLY BOARD OF EDUCATION


                On Appeal from the United States District Court
                       for the District of New Jersey
                     D.C. Civil Action No. 04-cv-1219
                         (Honorable Joel A. Pisano)


                           Argued January 23, 2007

    Before: SCIRICA, Chief Judge, FUENTES and CHAGARES, Circuit Judges

                           (Filed: January 24, 2008)


ANDREW POLICASTRO (ARGUED)
    Appellant, Pro Se

ARTHUR R. THIBAULT, JR., ESQUIRE (ARGUED)
Apruzzese, McDermott, Mastro & Murphy
25 Independence Boulevard
P.O. Box 112
Liberty Corner, New Jersey 07938
       Attorney for Appellees
JEANNE LoCICERO, ESQUIRE (ARGUED)
American Civil Liberties Union of New Jersey Foundation
89 Market Street, 7th Floor
P.O. Box 32159
Newark, New Jersey 07102
      Attorney for Amici Curiae-Appellants,
      American Civil Liberties Union of New Jersey Foundation and
      The Student Press Law Center




                              OPINION OF THE COURT


SCIRICA, Chief Judge.

       Appellant Andrew Policastro, a teacher at Tenafly High School, sued the school’s

principal, Dr. Theodora Kontogiannis, and the Tenafly Board of Education for violation

of his First Amendment right to freedom of speech. Following a bench trial, the District

Court dismissed Policastro’s claims and entered judgment in favor of both Kontogiannis

and the school board. We will affirm the judgment in part and dismiss in part.1

                                            I.

       Policastro is a science teacher at Tenafly High School. On March 13, 2002, at

8:15 a.m., a memorandum was distributed to all Tenafly High School staff members

through the teachers’ school-provided mailboxes. The memorandum involved a labor

dispute between teachers and their union over negotiations of a proposed collective




   1
     The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343, and we have
appellate jurisdiction under 28 U.S.C. § 1291.

                                            2
bargaining contract. A ratification vote on the proposal was scheduled that same

afternoon. Policastro was one of thirteen teachers who signed the memorandum.

       In the words of the District Court, the memorandum was “plain vanilla,”

containing no vulgarities or obscenities. Yet the memorandum prompted complaints to

Dr. Theodora Kontogiannis, principal of Tenafly High School. One complaint reported a

“commotion in the library” over the memorandum, and another reported arguments

among teachers. Kontogiannis, deciding the memorandum was unacceptably disrupting

school activities, removed all remaining copies from the teachers’ mailboxes.

Immediately thereafter, a teacher reinserted copies in the mailboxes. Kontogiannis again

ordered the memorandum removed and the mailroom door locked for the remainder of the

school day.

       Based on these events, Policastro filed suit against Kontogiannis and the school

board. He alleged that Kontogiannis’s removal of the memorandum violated his First

Amendment right to free speech, and he challenged as unconstitutional a Tenafly School

Board policy restricting the use of teacher mailboxes. Defendants filed a motion to

dismiss for failure to state a claim. The District Court granted the motion, and Policastro

appealed. We vacated the dismissal and remanded to the District Court for further

proceedings. See Policastro v. Kontogiannis, No. 04-2883, 2005 WL 1005131 (3d Cir.

Jan. 12, 2005).




                                             3
       The District Court conducted a bench trial at which Policastro appeared pro se. At

the conclusion of both sides’ testimony, the District Court adjudicated Policastro’s claims

and found in favor of both Kontogiannis and the school board and against Policastro.2

This appeal followed.

                                              II.

                                              A.

       The Tenafly School Board has a written policy on using teacher mailboxes

(“Mailbox Policy”), which provides:

       Mailboxes are the property of the Tenafly Board of Education and should
       be used for school business. Any staff member wishing to distribute
       flyers/announcements etc. (via the mailboxes) must have prior approval
       from the principal or vice-principal.

Policastro claims this policy is unconstitutional on its face. The District Court

characterized this claim as an overbreadth challenge, stating it would try the issue of

whether the policy “impermissibly extends [to] . . . speech that cannot be constitutionally

restricted.” (Tr. at 5:20-22). Policastro did not object.3

   2
      Keen to the need for exigency in this matter, the District Court issued an oral
decision from the bench. The judgment employed the term “dismissal,” but on review of
the transcript it appears plain the court was adjudicating Policastro’s claims. Any
confusion in wording may have been due to our prior decision vacating the original
dismissal for failure to state a claim and remanding for fact finding. But the record
reveals Policastro’s claims were adjudicated following a bench trial that included
testimony from all relevant parties and witnesses.
   3
     The amici curiae contend the Mailbox Policy is also unconstitutionally vague. But
there was no testimony during the bench trial about the risk of discriminatory application
                                                                              (continued...)

                                               4
       A regulation is unconstitutionally overbroad where there is “‘a likelihood that [it]s

very existence will inhibit free expression’ by ‘inhibiting the speech of third parties who

are not before the Court.’” Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 214 (3d Cir.

2001) (quoting Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 799

(1984)). “[A]voidance of this chilling effect is at the heart of the overbreadth doctrine.”

Gasparinetti v. Kerr, 568 F.2d 311, 317 (3d Cir. 1977) (citation omitted). But a

regulation’s inhibiting nature must be “‘not only real but substantial in relation to [it]s

plainly legitimate sweep’” to be held unconstitutional. Saxe, 240 F.3d at 214 (quoting

Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)). “Because the overbreadth doctrine is

‘strong medicine,’ it is to be used sparingly, where the demonstrated overbreadth is

considerable.” Kreimer, 958 F.2d at 1265 (quoting New York v. Ferber, 458 U.S. 747,

769 (1982)) (some internal quotation marks omitted).

       Here, the District Court held the Mailbox Policy had no actual or potential chilling

effect. The court found that Tenafly teachers, including Policastro, had distributed

personal documents through the teachers’ mailboxes both before and after the subject


   3
    (...continued)
of the Mailbox Policy or whether school officials were endowed with undue discretion
under the policy. These questions would be central to a vagueness challenge. See, e.g.,
Kreimer v. Bureau of Police for Morristown, 958 F.2d 1242, 1266 (3d Cir. 1992).
Accordingly, we will only address overbreadth. See Gass v. Virgin Islands Tel. Corp.,
311 F.3d 237, 246 (3d Cir. 2002) (“[I]t is well established that failure to raise an issue in
the district court constitutes a waiver of the argument. . . . We only depart from this rule
when manifest injustice would result from a failure to consider a novel issue.”) (citation
and internal quotation marks omitted).

                                               5
memorandum was confiscated. The court also found, and all parties agreed, that Tenafly

High School administrators had never denied prior approval of a mass distribution, and

that–with the exception of the subject memorandum here–nothing had ever been removed

from the mailboxes. Furthermore, in terms of the Mailbox Policy’s “legitimate sweep,”

the court credited Kontogiannis’s testimony that the purpose of the policy was to ensure

that the mailboxes did not become overstuffed to the point where documents involving

school business would be missed or lost. Based on these facts, the court concluded that

any inhibiting impact of the Mailbox Policy was insubstantial relative to its legitimate

scope.

         We agree that the record fails to show that the Mailbox Policy has had an actual or

potential chilling effect on teacher speech. Policastro admits that “[s]ince the removal of

the memo . . . use of the mailboxes by teachers for personal messages (memos, notes,

cards, etc.) has continued as usual, without prior approval.” Policastro Brief at 5.

Accordingly, we will affirm the District Court’s denial of Policastro’s overbreadth

challenge.

                                              B.

         Policastro also claims the Mailbox Policy is unconstitutional as it was applied to

him. But Kontogiannis testified at trial that she removed the memorandum because of a

disruption among the teachers that threatened to disrupt the school’s program. There is

no evidence in the record demonstrating the Mailbox Policy was the cause of the



                                               6
memorandum’s removal. Accordingly, Policastro has not shown he suffered any injury

under the policy or that the policy has ever in fact been applied to him. We will affirm

the District Court’s denial of Policastro’s “as applied” challenge to the Mailbox Policy.

                                             III.

       Policastro also claims his First Amendment right to free speech was violated

whether or not Kontogiannis removed the subject memorandum under the Mailbox

Policy.4 He did not seek damages. He seeks declaratory and injunctive relief only,

which, for the reasons set forth below, are forms of relief we have no authority to provide

on the facts here. Therefore, we will dismiss this claim as non-justiciable, because even

if meritorious, we could not redress it.

       To bring and maintain a lawsuit through adjudication, Policastro must have

standing. E.g., Artway v. Attorney Gen. of N.J., 81 F.3d 1235, 1246 (3d Cir. 1996). “The

three elements necessary to establish the irreducible constitutional minimum of standing

are: (1) the plaintiff must have suffered an injury in fact–an invasion of a legally

protected interest which is (a) concrete and particularized and (b) actual or imminent, not

conjectural or hypothetical; (2) a causal connection between the injury and the conduct


   4
      Policastro’s pro se complaint has been liberally construed to include a claim under
42 U.S.C. § 1983 that the school’s actions in removing the memorandum infringed on his
First Amendment right to free speech. See Policastro v. Kontogiannis, No. 04-2883,
2005 WL 1005131 (3d Cir. 2005). This claim is distinct from his “as applied” challenge
to the Mailbox Policy, because he alleges his speech was unconstitutionally silenced by
the school’s actions even if those actions were motivated by something other than the
Mailbox Policy.

                                              7
complained of; and (3) it must be likely, as opposed to merely speculative, that the injury

will be redressed by a favorable decision.” Taliaferro v. Darby Twp. Zoning Bd., 458

F.3d 181, 188 (3d Cir. 2006) (citing United States v. Hayes, 515 U.S. 737, 742-43

(1995)).

       In our prior opinion vacating the District Court’s dismissal for failure to state a

claim, we acted without the benefit of fact-finding. Here, we have discovery and a trial

record. On prior review, Policastro’s standing was not in question. Policastro’s pro se

complaint, construed liberally, alleged Kontogiannis removed the offending memorandum

from teacher mailboxes under the school’s Mailbox Policy. Had this been proven,

equitable relief might have been proper if the policy were unconstitutional, facially and/or

as applied. But the trial testimony unequivocally shows the subject memorandum was

removed because of the perceived disturbance it caused, not because of the Mailbox

Policy. Because the school’s action in removing the memorandum was an isolated

occurrence wholly unrelated to the Mailbox Policy, the facts present no ongoing harm or

controversy for us to remedy. Accordingly, whether or not Policastro had standing prior

to remand, his claims are now moot.

       A mootness inquiry asks whether a claimant’s standing continues throughout the

litigation. “A case is moot when the issues presented are no longer live or the parties lack

a legally cognizable interest in the outcome.” Donovan ex. rel. Donovan v. Punxsutawney

Area School Bd., 336 F.3d 211, 216 (3d Cir. 2003) (citation omitted). “The court’s ability



                                              8
to grant effective relief lies at the heart of the mootness doctrine.” Id. “That is, if

developments occur during the course of adjudication that eliminate a plaintiff’s personal

stake in the outcome of a suit or prevent a court from being able to grant the requested

relief, the case must be dismissed as moot.” Id.; see also Green v. Branson, 108 F.3d

1296, 1299 (10th Cir. 1997) (“The touchstone of the mootness inquiry is whether the

controversy continues to touch the legal relations of parties having adverse legal interests

in the outcome of the case.”) (citation omitted). “The crucial question is whether

‘granting a present determination of the issues offered . . . will have some effect in the

real world.’” Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248, 1256

(10th Cir. 2004) (alterations in original) (citations omitted).

       At this juncture, no available remedy would redress Policastro’s suit. He has not

sought damages.5 Injunctive relief would be unavailable for Policastro at this time, and


   5
      Policastro’s suit would likely survive a justiciability challenge if he had sought
damages. See, e.g., Boag v. MacDougall, 454 U.S. 364 (1982) (holding the transfer to
another prison did not moot a prisoner’s claim for damages arising from placement in
solitary confienement); Donovan, 336 F.3d at 218 (holding claims for damages and
attorneys fees continued to present a live controversy even though claims for declaratory
and injunctive relief were moot); Jersey Cent. Power & Light Co. v. New Jersey, 772 F.2d
35, 41 (3d Cir. 1985) (“[T]he availability of damages or other monetary relief almost
always avoids mootness. . . .”); Blau v. Fort Thomas Public School Dist., 401 F.3d 381,
387 (6th Cir. 2005) (noting the existence of a damages claim “ensures that [a] dispute is a
live one over which Article III gives us continuing authority.”) (multiple citations
omitted). But Policastro chose not to assert a claim for damages. A request for damages
will generally save a case from becoming moot when equitable relief no longer provides
an effective remedy, but courts will not read a claim for damages into a complaint that
contains no such request. See Seven Words LLC v. Network Solutions, 260 F.3d 1089,
                                                                                 (continued...)

                                               9
declaratory relief would amount to no more than an advisory opinion regarding the

“wrongfulness” of past conduct. See, e.g., Green v. Branson, 108 F.3d at 1299-1300

(10th Cir. 1997) (“[A party’s] ‘legal interest’ must be more than simply the satisfaction of

a declaration that a person was wronged.”) (citing Ashcroft v. Mattis, 431 U.S. 755, 761

(1987)). The Supreme Court has consistently held “a federal court has neither the power

to render advisory opinions nor to decide questions that cannot affect the rights of

litigants in the case before them.” Preiser v. Newkirk, 422 U.S. 395, 401 (1975)

(quotation omitted). The Court has provided further guidance on this point:

       “In all civil litigation, the judicial decree is not the end but the means. At
       the end of the rainbow lies not a judgment, but some action (or cessation of
       action) by the defendant that the judgment produces–the payment of
       damages, or some specific performance, or the termination of some
       conduct. Redress is sought through the court, but from the defendant. This
       is no less true of a declaratory judgment suit than of any action. The real
       value of the judicial pronouncement–what makes it a proper judicial
       resolution of a ‘case or controversy’ rather than an advisory opinion–is in
       the settling of some dispute which affects the behavior of the defendant
       towards the plaintiff.”

Rhodes v. Stewart, 488 U.S. 1, 3-4 (1988) (quoting Hewitt v. Helms, 482 U.S. 755, 761

(1987)) (emphases in original).

       Accordingly, where Policastro has not sought damages, and we are unable to

afford him meaningful alternative relief, his claim that Kontogiannis’s removal of the




   5
    (...continued)
1097 (9th Cir. 2001) (holding claims moot where appellant sought only injunctive and
declaratory relief but failed to request damages).

                                             10
subject memorandum from teacher mailboxes violated his First Amendment right to free

speech is moot.6

                                             IV.

       For the foregoing reasons, we will affirm the District Court’s denial of Policastro’s

facial and as applied challenges to the school’s Mailbox Policy. We will also dismiss as

non-justiciable Policastro’s claim that his First Amendment right to free speech was

violated.




   6
      We note that the “capable of repetition yet evading review” exception to mootness,
e.g., Brody ex. rel. Sugzdinis v. Spang, 957 F.2d 1108, 1113–15 (3d Cir. 1992), does not
apply here. “This extremely narrow exception to the mootness doctrine is applicable only
where: 1) the challenged action is too short in duration to be fully litigated before the case
will become moot; and 2) there is a reasonable expectation that the complaining party will
be subjected to the same action again.” Donovan, 336 F.3d at 217 (citing Weinstein v.
Bradford, 423 U.S. 147 (1975) (per curiam)). The prospect of a similar memorandum
being removed from teacher mailboxes under the facts here is too speculative to warrant
invocation of this narrow exception. See, e.g., Preiser v. Newkirk, 422 U.S. 395, 403
(1975) (“Any subjective fear [Plaintiff] might entertain of being again [subjected to]
circumstances similar to those alleged in the complaint . . . is indeed remote and
speculative and hardly casts [a] ‘continuing and brooding presence’ over him . . . .”)
(citation omitted). Even looking beyond the unique circumstances of the union
negotiations at the heart this case, the record demonstrates, and Policastro himself asserts,
that no other item–among the many hundreds of items inserted in teacher mailboxes–has
been removed from teacher mailboxes, either prior to or subsequent to the removal of his
memorandum. Moreover, because of email and other technologies, the teacher mailboxes
no longer serve as the primary means of communication between the school and its
teachers.


                                             11
