BRUNO v. THE SUPREME COURT OF PENNSYLVANIA et al

Filing 14

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE ANITA B. BRODY ON 5/13/2013. 5/13/2013 ENTERED AND COPIES VIA ECF.(mo, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA

JUDGE MARK A. BRUNO,
Plaintiff,
v.
THE SUPREME COURT
OF PENNSYLVANIA, et al.,
Defendants.

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CIVIL ACTION
NO. 13-1357

May __13_, 2013

Anita B. Brody, J.

MEMORANDUM
Plaintiff Judge Mark A. Bruno brings suit under 42 U.S.C. § 1983 against Defendants the
Supreme Court of Pennsylvania, Chief Justice Ronald D. Castille, Justice Thomas G. Saylor,
Justice J. Michael Eakin, Justice Deborah McCloskey Todd, Justice Seamus P. McCaffery, and
Justice Max Baer (collectively, “PA Supreme Court Defendants”). On February 1, 2013, the
Pennsylvania Supreme Court sua sponte suspended Bruno without pay. Bruno claims that the
PA Supreme Court Defendants violated his procedural due process rights under the Fourteenth
Amendment.
Bruno has filed a motion for preliminary injunction, requesting that I enjoin “the
Defendants from suspending Judge Mark A. Bruno without pay and benefits pending the
resolution of his criminal trial.” Pl.’s Mot. 2. The PA Supreme Court Defendants request that
the motion for a preliminary injunction be denied. For the reasons set forth below, I will deny
Bruno’s motion.

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I. BACKGROUND1
Plaintiff Judge Mark A. Bruno is a Pennsylvania Magisterial District Judge in the
Borough of West Chester. At the request of the Pennsylvania Supreme Court, Bruno has
presided over cases in the Philadelphia Traffic Court once a year for four or five days while
Traffic Court judges are away on training.
On January 29, 2013, Bruno was indicted by a federal grand jury in the Eastern District
of Pennsylvania, and charged with one count of conspiracy to commit wire and mail fraud, in
violation of 18 U.S.C. § 1349; one count of wire fraud, in violation of 18 U.S.C. § 1343; and one
count of mail fraud, in violation of 18 U.S.C. § 1341. The indictment charges that Bruno and his
co-conspirators “used the Philadelphia Traffic Court . . . to give preferential treatment to certain
ticketholders, most commonly by ‘fixing’ tickets for those with whom they were politically and
socially connected.” Compl. Ex. A ¶ 1.
On February 1, 2013, without any prior notice to Bruno, the Pennsylvania Supreme Court
issued an order (“Suspension Order”) suspending Bruno without pay. The Suspension Order
states:
PER CURIAM
AND NOW, this 1st day of February 2013, it is hereby ordered that
Magisterial District Judge Mark A. Bruno for Magisterial District 15-1-01, of the
Fifteenth Judicial District, Chester County, Pennsylvania, is hereby relieved of
any and all judicial and administrative responsibilities as a judge of the
Magisterial District Court.
It is further ordered that Judge Mark A. Bruno is suspended without pay
pending further Order of this Court.
This Order is without prejudice to the rights of Judge Mark A. Bruno to
seek relief in this Court for the purpose of vacating or modifying this Order. In
Re: Avellino, 609 A.2d 1138 (Pa. 1997); and see In Re: McFalls, 795 A.2d 367
(Pa. 2002).
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All facts are taken from the Complaint and the attached exhibits.
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Compl. Ex. B. Since the February 1, 2013 Order, Bruno has not received any pay. He still
receives medical benefits, but has to pay $72.00 per month to receive them.
II. SUBJECT MATTER JURISDICTION
The PA Supreme Court Defendants argue that this Court lacks subject matter jurisdiction
under the Rooker-Feldman doctrine. The doctrine is named after the only two Supreme Court
cases to have applied the doctrine to defeat federal subject matter jurisdiction: Rooker v. Fidelity
Trust Company, 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman,
460 U.S. 462 (1983). Rooker-Feldman is a narrow doctrine “confined to cases of the kind from
which the doctrine acquired its name: cases brought by state-court losers complaining of injuries
caused by state-court judgments rendered before the district court proceedings commenced and
inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, 284 (2005); Lance v. Dennis, 546 U.S. 459, 464 (2006).
“Rooker and Feldman exhibit the limited circumstances in which this Court’s appellate
jurisdiction over state-court judgments, 28 U.S.C. § 1257, precludes a United States district court
from exercising subject-matter jurisdiction . . . .” Exxon, 544 U.S. at 291. Under 28 U.S.C §
1257, only the Supreme Court is vested with jurisdiction over appeals from final state-court
judgments. “Accordingly, under what has come to be known as the Rooker–Feldman doctrine,
lower federal courts are precluded from exercising appellate jurisdiction over final state-court
judgments.” Lance, 546 U.S. at 463 (emphasis added). Thus, the Rooker-Feldman doctrine only
applies in the “limited circumstances” where “the losing party in state court filed suit in federal
court after the state proceedings ended, complaining of an injury caused by the state-court
judgment and seeking review and rejection of that judgment.” Exxon, 544 U.S. at 291 (emphasis
added). Parallel state and federal litigation does not trigger application of the Rooker-Feldman
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doctrine, even when the federal litigation is initiated after the state proceedings have
commenced. Id. at 291-94.
While Courts of Appeals recognize that Rooker-Feldman only applies to federal district
court suits filed after state proceedings are final, there is some disagreement as to when a state
proceeding has sufficiently “ended” to trigger Rooker-Feldman. Compare Federacion de
Maestros de Puerto Rico v. Junta de Relaciones del Trabajo de Puerto Rico, 410 F.3d 17, 28 (1st
Cir. 2005) (Rooker-Feldman applied where the Puerto Rico Supreme Court had finally resolved
the sole federal question in an interlocutory ruling), with TruServ Corp. v. Flegles, Inc., 419 F.3d
584 (7th Cir. 2005) (Rooker-Feldman does not apply to interlocutory rulings because the statecourt proceeding has not ended). Even under the broadest definition of this requirement, state
proceedings have not ended here. In Federacion, the First Circuit adopted a broad and
comprehensive test to determine if state proceedings had ended for Rooker-Feldman purposes.
See also Nicholson v. Shafe, 558 F.3d 1266, 1275 (11th Cir. 2009) (applying Federacion test);
Guttman v. Khalsa, 446 F.3d 1027, 1032 n.2 (10th Cir. 2006) (approvingly citing Federacion
test); Mothershed v. Justices of Supreme Court, 410 F.3d 602, 604 n.1 (9th Cir. 2005) (applying
Federacion test). According to the First Circuit, state proceedings have “ended” in the following
three situations: (1) “when the highest state court in which review is available has affirmed the
judgment below and nothing is left to be resolved”; (2) “if the state action has reached a point
where neither party seeks further
action . . . . For example, if a lower state court issues a judgment and the losing party allows
time for appeal to expire”; and (3) “if the state court proceedings have finally resolved all the
federal questions, but state law or purely factual questions (whether great or small) remain to be
litigated.” Federacion, 410 F.3d at 24-25.

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Here, the Pennsylvania Supreme Court sua sponte issued the Suspension Order,
suspending Bruno “pending further Order of this Court . . . without prejudice to the rights of
Judge Mark A. Bruno to seek relief in this Court for the purpose of vacating or modifying this
Order.” Compl. Ex. B. On its face, the Suspension Order is not final and does not end the state
proceedings because it anticipates further action of the Pennsylvania Supreme Court and invites
Bruno to appeal his suspension by seeking to vacate or modify the Order. The Suspension Order
fits none of the situations described above, in which state proceedings have ended. The
Suspension Order does not affirm the judgment of any lower court and it clearly leaves more to
be resolved. Additionally, both parties may seek further action. In fact, no time limitation has
been placed on Bruno’s right to appeal his suspension. Moreover, the language of the
Suspension Order indicates that the Pennsylvania Supreme Court intends to take further action.
Lastly, the state court proceedings have not yet resolved Bruno’s constitutional challenge to his
suspension, but it is reasonable to presume that the Pennsylvania Supreme Court will entertain
this challenge if Bruno seeks to vacate or modify the Suspension Order. According to the Third
Circuit:
When the “administrator” making a decision is a state supreme court and that
state supreme court presents a litigant with an opportunity to present arguments to
the court, it is reasonable for a party to expect that such a body will entertain
constitutional challenges to its actions and to expect litigants to be on notice of
this possibility, even if the state court seems to be acting in an administrative
capacity.
Guarino v. Larsen, 11 F.3d 1151, 1161 (3d Cir. 1993). Therefore, the Rooker-Feldman doctrine
does not apply because the state proceedings have not ended and a final judgment has not issued.
Furthermore, the Rooker-Feldman doctrine is inapplicable because under the doctrine, “a
United States District Court has no authority to review final judgments of a state court in judicial
proceedings.” Feldman, 460 U.S. at 482 (emphasis added). In order for Rooker-Feldman to
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apply, a judicial proceeding, rather than an administrative act, must have occurred. Feldman,
460 U.S. at 476-77; Guarino, 11 F.3d at 1157. In determining whether this requirement has been
met, the Third Circuit has equated “judicial proceedings” with “adjudicative acts.” See Blake v.
Papadakos, 953 F.2d 68, 71-72 (3d Cir. 1992). There are two types of administrative acts,
legislative and ministerial acts. Id. at 1157-58 (citing Feldman, 460 U.S. at 477, 479). The
Supreme Court has explained that an act is adjudicative if it “investigates, declares and enforces
liabilities as they stand on present or past facts and under laws supposed to already exist.”
Feldman, 460 U.S. at 477 (internal quotation marks omitted). Whereas, a legislative act “looks
to the future and changes existing conditions by making a new rule to be applied thereafter to all
or some part of those subject to its power.” Id. (internal quotation marks omitted). “Ministerial
acts, although not precisely defined by the Supreme Court, are acts taken with respect to
particular individuals based on the preferences of the actor; they do not involve application of
preferences inscribed in existing law; nor do they involve the creation of a rule that will apply in
the future.” Guarino, 11 F.3d at 1157.
In Guarino, Judge Guarino brought suit in the Eastern District of Pennsylvania against
the Justices of the Supreme Court of Pennsylvania and the statewide court administrator. 11
F.3d at 1152. Guarino sued the defendants under 42 U.S.C. § 1983, alleging the defendants had
violated his constitutional rights when they peremptorily removed him from office on November
10, 1992. Id. On November 10, 1992, the Pennsylvania Supreme Court, without any prior
notice to Guarino, issued an order revoking Guarino’s assignment as a senior judge. Id. at 1154.
A class action lawsuit had been filed against Guarino in federal court concerning his treatment of
venirepersons, but the November 10, 1992 order failed to provide any reason for revocation of
Guarino’s assignment. Id. On February 26, 1993, the Pennsylvania Supreme Court issued

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another order directing Guarino to appear before the Supreme Court on March 9, 1993 to show
cause why the November 10, 1992 order should not remain in effect. Id. at 1155. Guarino did
not appear, and on March 10, 1993, the Pennsylvania Supreme Court issued a per curiam order
affirming its November 10, 1992 order. Id. In the March 10, 1993 order, the Pennsylvania
Supreme Court justified its order by pointing to the class action lawsuit filed against Guarino,
and explaining that “the temporary assignment of a retired judge to judicial service is a matter
solely within the discretion of this Court, and any such assignment may be revoked for any
reason at this Court’s discretion.” Id. (internal quotation marks omitted). Additionally, the
Pennsylvania Supreme Court stated that the March 9, 1993 hearing had “afforded Judge Guarino
an opportunity to present all the facts, legal contentions and other considerations he deemed
appropriate and relevant.” Id. (internal quotation marks omitted).
On appeal, the Third Circuit, in an opinion authored by the late Judge Edward R. Becker,
addressed whether the district court lacked jurisdiction over the action under the RookerFeldman doctrine. Id. at 1156. The Third Circuit concluded that the initial November 10, 1992
order, considered in isolation, was not adjudicative. Id. at 1159. However, the Third Circuit
held that the March 10, 1993 order was adjudicative because it reached legal conclusions on
Guarino’s claims. Id. Thus, the Third Circuit held that the Rooker-Feldman doctrine applied
and the district court had no jurisdiction over the action.
Of import to this case is the Third Circuit’s explanation that the November 10, 1992 order
standing alone was not adjudicative. The following factors led the Third Circuit to reach this
conclusion: (1) “the November 10 order was issued under the powers granted to the supreme
court to administer the state courts; it was not an attempt to construe the meaning of those laws
and to apply them to particular facts”; (2) “the Pennsylvania Supreme Court did not apply any

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other laws in issuing its November order”; and (3) “Judge Guarino made no claim of right and
the Pennsylvania Supreme Court did not deny any claim of right. There was simply no evidence
to indicate that the court was applying existing laws to determine a claim of right.” Id. at 115859. The defendants argued that the November 10, 1992 order had to be adjudicative “because it
did not look to the future to change existing conditions through the enactment of a new rule.” Id.
at 1159. The Third Circuit rejected the defendants’ argument that if an act was not legislative it
had to be adjudicative. Id. Rather, the Third Circuit explained: “An actor's decisions that are
based on personal preferences rather than legal rules are not adjudicative decisions even if the
preferences are about a particular individual and are related to matters that have occurred in the
past.” Id. Ultimately, the Third Circuit concluded that the absence of the application of existing
laws to the case in the November 10, 1992 order was “fatal” to the defendants’ claim that the
order was adjudicative. Id.
In Guarino, Rooker-Feldman only became applicable after the Pennsylvania Supreme
Court issued a second order adjudicating Guarino’s legal claims. In Bruno’s case, the
Pennsylvania Supreme Court has issued only one order. Like the November 10, 1992 order in
Guarino, the Suspension Order was issued sua sponte without prior notice to Bruno. Moreover,
the Suspension Order fails to mention Bruno’s indictment or provide any justification for
Bruno’s suspension. The Pennsylvania Supreme Court issued the Suspension Order without
Bruno having made any claim of right and without the court denying any claim of right. Unlike
in Guarino, the Suspension Order, which suspended Bruno without analysis, string cites two
Pennsylvania Supreme Court cases: In re Avellino, 690 A.2d 1138 (Pa. 1997) and In re McFalls,
795 A.2d 367 (Pa. 2002). Compl. Ex. B. These cases stand for the proposition that the
Pennsylvania Supreme Court maintains the ability to discipline judges based on its inherent

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supervisory powers to administer the courts. McFalls, 795 A.2d at 372-73; Avellino, 690 A.2d at
1143-44. By citing to these cases the Pennsylvania Supreme Court acknowledges that it has
supervisory powers to issue the order, but, as in Guarino, “it [i]s not an attempt to construe the
meaning of those laws and to apply them to particular facts.” 11 F.3d at 1158. As in Guarino,
“there [is] simply no evidence to indicate that the court was applying existing laws to determine
a claim of right.” Id. at 1159. Rather, the Suspension Order appears to be a ministerial act that,
like the order revoking Guarino’s assignment as a senior judge, is “based on personal preferences
rather than legal rules.” Id. The Pennsylvania Supreme Court’s failure to apply existing laws to
Bruno’s case is fatal to the PA Supreme Court Defendants’ claim that the Suspension Order was
adjudicative.
The Rooker-Feldman doctrine does not apply because the Suspense Order is not
adjudicative nor did it end the state proceedings. Therefore, Rooker-Feldman does not deprive
this Court of subject matter jurisdiction. I exercise federal question jurisdiction over Bruno’s
claim that the PA Supreme Court Defendants violated his procedural due process rights pursuant
to 28 U.S.C. § 1331. I will now consider the merits of Bruno’s motion.
III. LEGAL STANDARD FOR PRELIMINARY INJUNCTION
In deciding whether to grant a motion for preliminary injunction, a court must consider
the following: (1) the plaintiff’s likelihood of success on the merits at the final hearing; (2) the
extent to which the plaintiff is being irreparably harmed; (3) the extent to which the defendant
will suffer irreparable harm if the motion is granted; and (4) the public interest. Am. Tel. & Tel.
Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994). “Only if the
movant produces evidence sufficient to convince the trial judge that all four factors favor

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preliminary relief should the injunction issue.” Opticians Ass'n of Am. v. Indep. Opticians of
Am., 920 F.2d 187, 192 (3d Cir. 1990).
IV. PROCEDURAL DUE PROCESS
The PA Supreme Court Defendants contend that Bruno is not likely to succeed on the
merits of his procedural due process claim, thus Bruno’s motion for preliminary injunction
should be denied.2 Bruno opposes this conclusion. Bruno cannot prevail on his request for an
injunction because he cannot demonstrate a likelihood of success on the merits at this stage in the
litigation.
The Fourteenth Amendment of the Constitution forbids a state from depriving persons of
life, liberty, or property without due process of law. U.S. Const. amend. XIV, § 1. “[T]o
establish a procedural due process claim, a plaintiff must demonstrate that (1) he was deprived of
an individual interest that is encompassed within the Fourteenth Amendment's protection of life,
liberty, or property, and (2) the procedures available to him did not provide due process of law.”
Iles v. de Jongh, 638 F.3d 169, 173 (3d Cir. 2011) (internal quotation marks omitted). The PA
Supreme Court Defendants argue that Bruno cannot succeed on his procedural due process claim
because he does not have a property interest in his judicial position and, even if he does have a
property interest, he has not been deprived of due process of the law. Bruno alleges that when
the PA Supreme Court Defendants suspended him without pay they deprived him of due process
of the law because they failed to provide him with a pre or post-suspension hearing. Regardless
of whether Bruno has a property interest in his position, he is unlikely to succeed in establishing
that he has been deprived of due process of the law.
A. Pre-Suspension Hearing
The Supreme Court Defendants raise several other arguments why Bruno’s motion for preliminary
injunction should be denied. I need not address them because Bruno is not likely to succeed on the merits
of his procedural due process claim.
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Bruno argues that he was entitled to a pre-suspension hearing, but was not afforded one.
The PA Supreme Court Defendants counter that they were not constitutionally required to
provide Bruno with a pre-suspension hearing.
In Gilbert v. Homar, 520 U.S. 924 (1997), the Supreme Court addressed the question
whether a State had deprived a tenured police officer, who had been criminally charged with a
felony, of due process of the law by failing to provide the employee with a hearing before it
suspended him without pay. To determine what process was constitutionally due, the Court
examined the following three factors: “‘First, the private interest that will be affected by the
official action; second, the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or substitute procedural safeguards;
and finally, the Government's interest.’” Gilbert, 520 U.S. at 931-32 (quoting Mathews v.
Eldridge, 424 U.S. 319, 335 (1976)).
The private interest depends upon both “the length” and “finality of the deprivation.” Id.
at 932 (internal quotation marks omitted). Taking these two factors into consideration, the Court
found that the employee’s private interest in a temporary suspension without pay was “relatively
insubstantial,” as long as the employee received a sufficiently prompt post-suspension hearing.
Id. The Court next considered the State’s competing interest, and concluded that “the State has a
significant interest in immediately suspending, when felony charges are filed against them,
employees who occupy positions of great public trust and high public visibility, such as police
officers.” Id. Because “the government does not have to give an employee charged with a
felony a paid leave at taxpayer expense,” the Court rejected the argument that the State’s interest
should have been met by suspending the officer with pay. Id.

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Lastly, the Court concluded that there was little risk of erroneous deprivation and little
value in providing additional procedures. Id. at 933-34. The Court explained that “the purpose
of any pre-suspension hearing would be to assure that there are reasonable grounds to support the
suspension without pay.” Id. at 933. In a prior case, the Court had already concluded that a
grand jury indictment provides adequate assurance that a suspension is justified. Id. at 934
(citing Fed. Deposit Ins. Corp. v. Mallen, 486 U.S. 230 (1988)). Likewise, the Court concluded
that the imposition of formal criminal charges provided the same assurance. Id. While the Court
agreed that an indictment provides “more reason to believe an employee has committed a felony”
than merely formal charges, the Court found that both assured that the suspension was not
arbitrary because in either situation “an independent third party has determined that there is
probable cause to believe the employee committed a serious crime.” Id.
Taking all three factors into consideration, the Court held that the State did not violate the
Due Process Clause of the Fourteenth Amendment when it failed to provide the police officer
with a pre-suspension hearing before suspending him without pay. Id. at 928-36.
As was the case in Gilbert, Bruno has only been temporarily suspended without pay.
Therefore, his private interest is “relatively insubstantial” because the Pennsylvania Supreme
Court has offered Bruno the opportunity for additional post-suspension procedural process in its
Suspension Order. In contrast, the PA Supreme Court Defendant’s interest in immediately
suspending Bruno is significant, because as a member of the State’s judiciary, Bruno holds a
high visibility position of great public trust, a position that is even more visible than the police
officer in Gilbert. Also, there is little risk that the failure to provide Bruno with a pre-suspension
hearing will result in an erroneous deprivation because he has been indicted by a federal grand
jury, which means “an independent third party has already determined that there is probable

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cause to believe [Bruno] committed a serious crime.” Id. at 934. In Gilbert, formal criminal
charges provided sufficient assurance that there were reasonable grounds to support the officer’s
suspension without pay, thus eliminating the need for a pre-suspension hearing. Here, Bruno has
been indicted by a federal grand jury—that provides even more reason than formal charges for a
State to believe that an employee has committed a felony. Certainly, the criminal indictment
provides reasonable grounds to support the PA Supreme Court Defendants’ decision to suspend
Bruno without pay. Accordingly, Bruno has not demonstrated a likelihood of success on the
merits of his claim that he was entitled to a pre-suspension hearing before the Pennsylvania
Supreme Court suspended him without pay.
B. Post-Suspension Hearing
Bruno argues that he was entitled to a post-suspension hearing, but was not afforded one.
The PA Supreme Court Defendants agree that Bruno has a right to a post-suspension hearing.
However, they argue that the Suspension Order provides Bruno with the opportunity to request a
post-suspension hearing. The PA Supreme Court Defendants contend that Bruno cannot proceed
on his procedural due process claim because he has not yet taken advantage of the process they
have offered him.
A procedural due process violation “is not complete when the deprivation occurs; it is not
complete unless and until the State fails to provide due process.” Zinermon v. Burch, 494 U.S.
113, 126 (1990).
In order to state a claim for failure to provide due process, a plaintiff must have
taken advantage of the processes that are available to him or her, unless those
processes are unavailable or patently inadequate. A state cannot be held to have
violated due process requirements when it has made procedural protection
available and the plaintiff has simply refused to avail himself of them. . . . If there
is a process on the books that appears to provide due process, the plaintiff cannot
skip that process and use the federal courts as a means to get back what he wants.

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Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000) (internal quotation marks omitted).
In the Suspension Order, the Pennsylvania Supreme Court invites Bruno “to seek relief in
this Court for the purpose of vacating or modifying this Order.” Compl. Ex. B. Instead of
requesting a post-suspension hearing before the Pennsylvania Supreme Court, Bruno filed this
federal suit. Bruno does not contest that he did not seek relief from his suspension in the
Pennsylvania Supreme Court. Rather, he argues that he went straight to this Court because the
Pennsylvania Supreme Court does not have the power to impose his interim suspension; thus a
post-suspension hearing was not “realistically available by the rules or from a practical basis.”
Pl.’s Reply 17. Despite Bruno’s contention, The Pennsylvania Supreme Court has held that it
has the power to impose interim suspensions on judges based on its supervisory power over the
court system. In re Merlo, 17 A.3d 869, 871-72 (Pa. 2011); see also Avellino, 690 A.2d at 1143.
There is no evidence that Bruno will be unable to receive an adequate post-suspension hearing
before the Pennsylvania Supreme Court. Therefore, Bruno has not demonstrated a likelihood of
success on the merits of his claim at this time because he has not taken advantage of the
opportunity for additional post-suspension procedural process offered to him by the
Pennsylvania Supreme Court in its Suspension Order.
V. CONCLUSION
For the above reasons, I will deny Bruno’s motion for a preliminary injunction.

s/Anita B. Brody
____________________________
ANITA B. BRODY, J.

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