Mel Marin v. Secretary Commonwealth of Penn

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: GREENAWAY, JR., GREENBERG and ROTH, Circuit Judges. Total Pages: 8.

Case: 16-3044

Document: 003112772954

Page: 1

Date Filed: 11/08/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3044
___________
MEL M. MARIN,
Appellant
v.
THE SECRETARY OF THE COMMONWEALTH OF PENNSYLVANIA
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(M.D. Pa. No. 1-15-cv-01550)
District Judge: Honorable Christopher C. Conner
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 14, 2017
Before: GREENAWAY, JR., GREENBERG and ROTH, Circuit Judges

(Opinion filed: November 8, 2017)
___________
OPINION*
___________

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Case: 16-3044

Document: 003112772954

Page: 2

Date Filed: 11/08/2017

PER CURIAM
Pro se appellant Mel Marin appeals from the District Court’s order granting the
Secretary of the Commonwealth of Pennsylvania (the Secretary) and the Commonwealth
Bureau of Elections’ (the Bureau) motion to dismiss his First Amended Complaint filed
under 42 U.S.C. § 1983. We will affirm.
I.
Mel A. Marin is a frequent pro se litigator in this Court, and in other state and
federal courts across the country. This action arises out of Marin’s failed 2014 bid to
become the Democratic Party nominee for Pennsylvania’s Third Congressional District.
In early 2014, Charles Rice, a county chairman, filed an action in the Pennsylvania
Commonwealth Court seeking to set aside Marin’s nomination petition on the ground that
many of his signatures were invalid. The Commonwealth Court agreed, and ordered
then-Secretary Carol Aichele to set aside Marin’s nomination petition.1 A week before
the Commonwealth Court issued its order, however, Marin filed a notice of removal to
the United States District Court for the Middle District of Pennsylvania (M.D. Pa. No.
14-cv-00669). The district court there concluded that it lacked subject matter
jurisdiction,2 and sua sponte remanded the matter to the Commonwealth Court. The
district court denied Marin’s motion for reconsideration, and we later denied Marin’s
1

See In re Petition of Mel M. Marin for the Democratic Nomination for Member of
Cong. in the 3rd Cong. Dist., 174 MD 2014 (Pa. Commw. Ct. Apr. 14, 2014). The
Commonwealth Court found that Marin failed to obtain the required 1,000 signatures for
nomination because, among other reasons, Marin completed the address and date lines for
many of the signatures.
2
The district court found that the action “involve[d] the application of Pennsylvania state
election and evidentiary laws.”
2

Case: 16-3044

Document: 003112772954

Page: 3

Date Filed: 11/08/2017

mandamus petition, observing that the district court’s “remand order is not reviewable on
appeal or otherwise.” In re Marin, 567 F. App'x 67, 67 (3d Cir. 2014) (internal quotation
marks omitted). Marin also appealed the Commonwealth Court’s order to the
Pennsylvania Supreme Court, which granted Rice’s application to dismiss, and the
United States Supreme Court, which denied certiorari.
Marin initiated this action in 2015, filing a nine-count First Amended Complaint
against the Secretary and the Bureau,3 seeking declaratory and injunctive relief, in
addition to damages, arising from his failed 2014 Congressional bid. He also alleged that
he submitted a complaint to the Secretary in June 2015, claiming that various county
election offices had refused to provide him with voter lists without charge. Marin alleged
that the Secretary retaliated against him for filing the complaint by (1) denying Marin’s
2016 Congressional fee-waiver-request, and (2) directing the Crawford County Elections
Bureau to deny him voter lists.
The District Court, over Marin’s objections, granted Defendants’ motion to
dismiss filed under Federal Rule of Civil Procedure 12(b)(6). This timely appeal ensued.
II.
We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s
dismissal of a complaint under Rule 12(b)(6) de novo and ask whether it has “sufficient
factual matter[,] accepted as true[,] to state a claim to relief that is plausible on [its] face.”
Fantone v. Latini, 780 F.3d 184, 193 (3d Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S.

3

Marin initially named a number of other defendants, including Rice, but later
voluntarily dismissed them.
3

Case: 16-3044

Document: 003112772954

Page: 4

Date Filed: 11/08/2017

662, 678 (2009)). And we “may affirm a result reached by the district court on different
reasons, as long as the record supports the judgment.” Guthrie v. Lady Jane Collieries,
Inc., 722 F.2d 1141, 1145 n.1 (3d Cir. 1983).
Marin’s claims against the Bureau are barred by the Eleventh Amendment, which
“has been interpreted to make states [and state agencies] generally immune from suit by
private parties in federal court,” with exceptions not relevant here. MCI Telecom. Corp.
v. Bell Atl.-Pa., 271 F.3d 491, 503-04 (3d Cir. 2001). For the reasons that follow,
Marin’s individual-capacity claims against the Secretary, though not barred by the
Eleventh Amendment, see Hafer v. Melo, 502 U.S. 21, 31 (1991), were properly
dismissed by the District Court.4
Marin argues that the District Court improperly dismissed his retaliation claim
against the Secretary, citing Andreoli v. Gates, 482 F.3d 641, 650 (3d Cir. 2007),5 for the
proposition that “whether or not there was causation . . . is a jury question.” A causal
connection in a First Amendment retaliation claim can be shown by “either (1) an
unusually suggestive temporal proximity between the protected activity and the alleged
retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal
link.” Lauren W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). The District Court

4

We will address only the issues that Marin presented in his opening brief. Any issues
not so presented are waived. See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.
2005) (“It is well settled that an appellant's failure to identify or argue an issue in his
opening brief constitutes waiver of that issue on appeal.”).
5
In Andreoli, 482 F.3d at 650, we affirmed the district court’s award of summary
judgment on a Title VII retaliation claim, concluding that the plaintiff failed to establish a
causal connection, and that the “timing, standing alone,” was not sufficiently
“suggestive.”
4

Case: 16-3044

Document: 003112772954

Page: 5

Date Filed: 11/08/2017

properly determined that Marin’s complaint lacked well-pleaded facts to show such a
connection.
Marin alleged that the Secretary refused to waive his 2016 Congressional filing
fee, and did so because Marin submitted a June 12, 2015, complaint about county
election offices. But he has not alleged when, or how, the Secretary denied the fee
waiver – the alleged retaliatory act. He has similarly failed to provide any degree of
particularity with respect to his allegation that the Secretary directed the Crawford
County Elections Bureau to not provide him voter lists. And he has not alleged a “pattern
of antagonism” that might otherwise suggest a causal connection. In other words, he has
pleaded facts that would permit the court to infer only “the mere possibility of
misconduct,” but has not plausibly suggested – as he must do to survive Defendants’
motion – that he is entitled to relief. Iqbal, 556 U.S. at 679 (citing Fed. R. Civ. P.
8(a)(2)).6
He additionally asked the District Court to enjoin the Secretary from (1) refusing
to waive future Congressional candidate filing fees, and (2) refusing to provide him voter
lists without charge. The District Court properly concluded that such requests were not
ripe for adjudication because Marin’s future candidacy for Congress is “contingent

6

Marin also sought damages against former-Secretary Aichele for complying with the
Commonwealth Court’s order to set aside his nomination petition. The District Court
properly dismissed this claim because Aichele was neither named nor served in this
action. Marin does not appear to contest this dismissal on appeal, and in any event,
Aichele would be entitled to absolute immunity. See Valdez v. City & Cty. of Denver,
878 F.2d 1285, 1290 (10th Cir. 1989) (doctrine extends to “action . . . taken under the
direction of a state court judge”).
5

Case: 16-3044

Document: 003112772954

Page: 6

Date Filed: 11/08/2017

[upon] future event that may not occur as anticipated, or indeed may not occur at all.”7
Texas v. United States, 523 U.S. 296, 300 (1998) (internal quotation marks omitted).
Finally, Marin challenges the District Court’s refusal to issue various declaratory
judgments. He asked the District Court to declare that various portions of Pennsylvania’s
Election Code were unconstitutional, and the District Court properly denied these
requests because he failed to state a plausible claim that any of the challenged statutes
were constitutionally infirm.8 Iqbal, 556 U.S. at 678; see also Anderson v. Celebrezze,
460 U.S. 780, 788 (1983) (“We have recognized that, as a practical matter, there must be
a substantial regulation of elections if they are to be fair and honest . . . To achieve these
necessary objectives, States have enacted comprehensive and sometimes complex
election codes . . . Nevertheless, the state’s important regulatory interests are generally
sufficient to justify reasonable, nondiscriminatory restrictions.”) (internal quotation
marks and citations omitted).

7

Marin is currently a resident of Ohio, and thus ineligible to run for Congress in
Pennsylvania. See U.S. Const. art. I, § 2, cl. 2.
8
He challenged, at Count Four, a non-existent local residency requirement contained in
25 Pa. Const. Stat. § 2937. At Count Three, he challenged 25 Pa. Cons. Stat. § 2868 to
the extent that it required nominators to print their name and address in their own hand,
on the ground that it substantially burdens disabled voters. But the Commonwealth Court
has recognized that “federal law mandates that the rights of the disabled be preserved and
facilitated” in the electoral process, and has interpreted § 2868 accordingly. See In re
Petition to Set Aside Nomination of Fitzpatrick, 822 A.2d 867, 870 (Pa. Commw. Ct.
2003) (declining to set aside signatures of elderly voters who used “ditto” for some of
their personal information). At Count Two, he challenged 25 Pa. Cons. Stat. § 2913(b) to
the extent that it imposed a 21-day period for filing nomination papers, on the ground that
it was “impossible” to collect 1,000 signatures in that period. But two consent decrees
entered in federal court have effectively extended this period by 90 days. See Baldwin v.
Cortes, 378 F. App'x 135, 137 (3d Cir. 2010) (explaining the deadline extension).
6

Case: 16-3044

Document: 003112772954

Page: 7

Date Filed: 11/08/2017

Marin also sought two declaratory judgments related to the Commonwealth
Court’s 2014 order setting aside his nomination petition – one to void that order, on the
ground that the Commonwealth Court lacked jurisdiction to enter the order after he filed
a notice of removal to the district court, and the other to declare that the particular
procedures employed by the Commonwealth Court in resolving the challenge to his
petition denied him “fundamental federal trial rights.”9 Even putting aside RookerFeldman and preclusion problems that may arise from such requests,10 he has not stated a
plausible claim to relief – due process or otherwise. Iqbal, 556 U.S. at 678.
As to his first request, the Commonwealth Court has exclusive jurisdiction over
actions “relating to elections . . . or [] election procedures,” 42 Pa. Cons. Stat.
§ 762(a)(4)(i)(C), and the district court properly determined that it lacked subject matter
jurisdiction to entertain his removal petition. See In re Marin, 567 F. App'x at 67.
Second, procedural due process generally requires that the deprivation of a protected
interest “be preceded by notice and opportunity for hearing appropriate to the nature of
the case.” Goss v. Lopez, 419 U.S. 565, 579 (1975) (internal quotation marks and
citation omitted). It is clear that the Commonwealth Court afforded him appropriate
9

He alleged, among other things that he was denied discovery, an opportunity to crossexamine Rice, and a jury trial.
10
The Rooker-Feldman doctrine would bar any attempt to “appeal” the Commonwealth
Court’s judgment to a lower federal court. See Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 284 (2005) (doctrine bars “cases brought by state court losers
complaining of injuries caused by a state court judgment rendered before the district
court proceedings commenced and inviting the district court review and rejection of those
judgments”). And preclusion doctrines would prevent “relitigation of [any] matter that
has been litigated and decided,” and also “litigation of a matter that never has been
litigated, [but] . . . should have been advanced in an earlier suit.” Migra v. Warren City
Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984).
7

Case: 16-3044

Document: 003112772954

Page: 8

Date Filed: 11/08/2017

process in resolving the challenge to his petition – it permitted him to testify in support of
his petition, and to cross-examine a handwriting expert who testified in support of Rice’s
objection. See id. at 579 (“The fundamental requisite of due process of law is the
opportunity to be heard.”). Ultimately, Marin conceded that he had completed the
address and date lines for many of the signatures, and the Commonwealth Court found
them invalid because he presented “no credible testimony concerning the physical
condition of the signers,” i.e., that they were unable to complete the information in their
own hand.
Accordingly, we will affirm the judgment of the District Court.

8