Berry III v. Ashcroft et al

Filing 25

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs Verified Motion for Temporary Restraining Order (Doc. #2 ) is DENIED without prejudice. IT IS FURTHER ORDERED that Plaintiffs Motion to Convene Three Judge Court (Doc. #13 ) is GRANTED, and the Court will therefore immediately notify the Chief Judge of the Eighth Circuit Court of Appeals of Plaintiffs request pursuant to 28 U.S.C. 2284(b)(1). IT IS FINALLY ORDERED that Plaintiff's Motion to Adjudicate Plaintiffs Motion to Convene Three-Judge Court Upon Pleadings (Doc. #18 ) is DENIED as moot. Signed by District Judge John A. Ross on 5/9/22. (JAB)

Case: 4:22-cv-00465-JAR Doc. #: 25 Filed: 05/09/22 Page: 1 of 6 PageID #: 190

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PAUL BERRY III,
Plaintiff,
v.
JOHN R. ASHCROFT, in his capacity as
Missouri Secretary of State, and
STATE OF MISSOURI,
Defendants.

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Case No. 4:22-CV-00465-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Paul Berry III’s Verified Motion for
Temporary Restraining Order (“TRO”) (Doc. 2) and Motion to Convene Three Judge Court.
(Doc. 13). The Court held an in-person hearing on these motions on May 9, 2022.
I.

BACKGROUND
Plaintiff Paul Berry III has declared himself a candidate for the Republican primary in

Missouri’s 2nd Congressional District. (Doc. 1 at ¶ 17). As of the date of this Memorandum and
Order, the Missouri legislature has not adopted a new congressional districting map based on the
results of the 2020 United States Census. The legislative session ends on May 13, 2022. MO.
CONST. art. III, § 20(a). Plaintiff brings this suit against Missouri Secretary of State John R.
Ashcroft and the State of Missouri alleging violations of the United States Constitution, Missouri
Constitution, and certain state statutes based on the legislature’s failure to adopt a map consistent
with the 2020 Census.
On April 22, 2022, Plaintiff filed a Verified Motion for Temporary Restraining Order.
(Doc. 2). Plaintiff appears to seek a declaration that Missouri cannot use the 2012 congressional

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district map (the “2012 Map”), which is based on the 2010 United States Census, for purposes of
the 2022 elections (among other requests for relief). (Id. at 34). Plaintiff has also requested
empanelment of a three-judge court pursuant to 28 U.S.C. § 2284. (Doc. 13). Defendants filed
their response to Plaintiff’s motions on May 3, 2022 (Doc. 16), and Plaintiff filed a reply on May
7, 2022. (Doc. 21). This Court held an in-person hearing on these motions on May 9, 2022 at
2:00 P.M. (Docs. 10, 15). 1
II.

ANALYSIS
Verified Motion for Temporary Restraining Order (Doc. 2)
Plaintiff appears to seek a declaration by this Court that Missouri cannot use the 2012

Map for purposes of the 2022 elections or take other actions which would allegedly violate the
United States Constitution, Missouri Constitution, and certain state statutes. 2 Plaintiff has
requested empanelment of a three-judge court pursuant to 28 U.S.C. § 2284. Per § 2284(b)(3),
this Court “may grant a temporary restraining order on a specific finding, based on evidence
submitted, that specified irreparable damage will result if the order is not granted.” Fed. R. Civ.
P. 65(e)(3) specifically provides that Fed. R. Civ. P. 65 does not modify 28 U.S.C. § 2284.
In addition to the explicit requirement of specified irreparable damage under 28 U.S.C. §
2284(b)(3), this Court considers “(1) the threat of irreparable harm to the movant; (2) the state of
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.”
On May 6, 2022, Joseph Pereles, Matthew Bax, Ike Graham, Robert Saunders, and Rachel Howard filed a Motion
to Intervene as Plaintiffs. (Doc. 19). The Court heard some arguments on this motion at the May 9, 2022 hearing and
proceeded to set an expedited briefing schedule. (Doc. 24).

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Plaintiff’s motion does not make clear the precise scope of the TRO requested. See Fed. R. Civ. P. 65(d)(1) (stating
that every restraining order must “describe in reasonable detail . . . the act or acts restrained or required.”). While the
Court focuses on potential use of the 2012 Map for the 2022 elections, the Court agrees with Defendants that Plaintiff’s
other claims are equally speculative and fail to establish a specified irreparable harm. (Doc. 16 at 5-6).
2

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Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981). Though Dataphase
technically establishes standards for ruling on a motion for preliminary injunction, courts in this
district have consistently applied the same factors to motions for temporary restraining orders.
See, e.g., White v. Bauman, No. 1:21-CV-37-NCC, 2021 WL 1145106, at *2 (E.D. Mo. Mar. 25,
2021); see also S.B. McLaughlin & Co., Ltd. v. Tudor Oaks Condo. Project, 877 F.2d 707, 708
(8th Cir. 1989) (affirming district court’s application of Dataphase factors to motion for
temporary restraining order). The party requesting injunctive relief bears the “complete burden”
of proving that an injunction should be granted. Gelco Corp. v. Coniston Partners, 811 F.2d
414, 418 (8th Cir. 1987).
The Court will deny Plaintiff’s motion because he has not established “that specified
irreparable damage will result if the order is not granted.” 28 U.S.C. § 2284(b)(3); see also
Powell v. Noble, 798 F.3d 690, 702 (8th Cir. 2015) (citation omitted) (“To succeed in
demonstrating a threat of irreparable harm, a party must show that the harm is certain and great
and of such imminence that there is a clear and present need for equitable relief.”). The Supreme
Court has emphasized in the preliminary injunction context that relief “based only on a
possibility of irreparable harm is inconsistent with [its] characterization of injunctive relief as an
extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled
to such relief.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 22 (2008) (citation omitted).
Plaintiff suggests “it is in the public interest for this Court to immediately declare the law
necessary for the Missouri General Assembly to enact a legal 2022 Missouri congressional map,”
and such a declaration will put “the entire population of Missouri on notice of the initial
consideration by the Court.” (Doc. 2 at 31, 33). But the last day of the Missouri legislative
session is not until May 13, 2022. See MO. CONST. art. III, § 20(a). Defendants reasonably argue

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that Plaintiff “seeks a TRO before [May 13, 2022] for the explicit purpose of trying to spur the
General Assembly into action.” (Doc. 16 at 3). In these circumstances, the Court cannot issue an
advisory declaration based upon the possibility that Missouri attempts to use the 2012 Maps in
the 2022 elections or takes some other hypothetical action such as changing the primary date. See
KCCP Tr. v. City of North Kansas City, 432 F.3d 897, 899 (8th Cir. 2005) (citation omitted)
(“One kind of advisory opinion is an opinion advising what the law would be upon a
hypothetical state of facts.”).
Plaintiff comes closest to alleging irreparable harm when he states that the lack of a new
map has frustrated his campaign efforts. (Doc. 2 at 28). But granting Plaintiff’s requested relief –
which exclusively consists of declarations of law by the Court – would not provide Plaintiff any
immediate clarity regarding the scope of his district. Plaintiff’s motion for TRO does not request
that the Court draw an interim map. (Id. at 33). The Court appreciates the urgent nature of
Plaintiff’s claims as we approach various deadlines relating to the 2022 elections. The Court
cannot say at this juncture, however, that the alleged harm is “certain and great and of such
imminence that there is a clear and present need for equitable relief.” Roudachevski v. All-Am.
Care Ctrs., Inc., 648 F.3d 701, 706 (8th Cir. 2011) (citation omitted).
In considering the balance of equities and public interest, moreover, this Court is
particularly cognizant that “reapportionment is primarily the duty and responsibility of the State
through its legislature or other body, rather than of a federal court.” Growe v. Emison, 507 U.S.
25, 34 (1993) (quoting Chapman v. Meier, 420 U.S. 1, 27 (1975)). Accordingly, “[a]bsent
evidence that these state branches will fail timely to perform that duty, a federal court must
neither affirmatively obstruct state reapportionment nor permit federal litigation to be used to
impede it.” Branch v. Smith, 538 U.S. 254, 261-62 (2003) (quoting id.) (emphasis in original).

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While federal courts hold “an important role . . . when a district plan violates the Constitution,” it
is ultimately an “unwelcome obligation.” League of United Latin Am. Citizens v. Perry, 548 U.S.
399, 415 (2006) (citation omitted). Granting a TRO before the Missouri legislature has
completed its session needlessly injects this Court into the state’s active deliberations on a
significant political issue. See id. at 416 (“[D]rawing lines for congressional districts is one of the
most significant acts a State can perform to ensure citizen participation in republican selfgovernance.”).
Plaintiff has failed to satisfy the requirement under 28 U.S.C. § 2284(b)(3) that he will
suffer “specified irreparable damage” if the TRO is not entered. The balance of equities and
public interest, moreover, strongly favor this Court affording Missouri’s legislative and judicial
bodies every opportunity to legally apportion the congressional districts based on the 2020
Census. Plaintiff’s reply primarily focuses on his likelihood of success on the merits. (Doc. 21 at
1-8). The Court does not believe it is necessary or appropriate to delve further into Plaintiff’s
likelihood of success on the merits at this point in these unique circumstances. Accordingly, the
Court will deny Plaintiff’s Verified Motion for Temporary Restraining Order without prejudice
to Plaintiff’s refiling at a later date. (Doc. 2).
Motion to Convene Three Judge Court (Doc. 13)
28 U.S.C. § 2284(a) provides that a district court of three judges “shall be convened . . .
when an action is filed challenging the constitutionality of the apportionment of congressional
districts.” Unless this Court determines three judges are not required, it must “immediately
notify” the Chief Judge of the Eighth Circuit Court of Appeals. 28 U.S.C. § 2284(b)(1). The
Supreme Court has held that § 2284(a) “admits of no exception” and “normally creates an
obligation impervious to judicial discretion.” Shapiro v. McManus, 577 U.S. 39, 43 (2015)

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(citations omitted). Plaintiff’s Complaint plainly qualifies as a constitutional challenge to the
apportionment of Missouri’s congressional districts. (Doc. 1 at ¶¶ 30-38). Defendants “do[] not
dispute that three judges are required here” and “concede[] that the Court should follow” the
statutory procedure outlined in 28 U.S.C. § 2284(b). (Doc. 16 at 12). At the May 9, 2022
hearing, Defendants affirmed their consent to Plaintiff’s request for a three-judge court.
Consistent with the requirements of 28 U.S.C. § 2284, the Court will immediately notify the
Chief Judge of the Eighth Circuit Court of Appeals of Plaintiff’s request to convene a threejudge court upon. 3
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Verified Motion for Temporary Restraining
Order (Doc. 2) is DENIED without prejudice.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Convene Three Judge Court
(Doc. 13) is GRANTED, and the Court will therefore immediately notify the Chief Judge of the
Eighth Circuit Court of Appeals of Plaintiff’s request pursuant to 28 U.S.C. § 2284(b)(1).
IT IS FINALLY ORDERED that Plaintiff’s Motion to Adjudicate Plaintiff’s Motion to
Convene Three-Judge Court Upon Pleadings (Doc. 18) is DENIED as moot.
Dated this 9th day of May, 2022.
________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

Also pending before the Court is Plaintiff’s First Amended Motion to Shorten Time and Expedited Setting. (Doc.
17). While recognizing the urgent nature of certain issues raised in Plaintiff’s motion, the Court will defer ruling on
this issue until after it provides the notice required by 28 U.S.C. § 2284. The three-judge court is fully capable of
establishing an appropriate schedule for further proceedings.

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