23-155
`Hulinsky v. County of Westchester
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`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
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`SUMMARY ORDER
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`RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM-
`MARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FED-
`ERAL 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.
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`At a stated term of the United States Court of Appeals for the Second Circuit, held at the
`Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
`21st day of June, two thousand twenty-three.
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`Present:
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`DEBRA ANN LIVINGSTON,
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`Chief Judge,
`REENA RAGGI,
`SUSAN L. CARNEY,
`Circuit Judges.
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`_____________________________________
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`40 DAYS FOR LIFE, A NONPROFIT CORPORATION OF
`THE STATE OF TEXAS, WHITE PLAINS 40 DAYS FOR
`LIFE, AS UNINCORPORATED ASSOCIATION OF THE
`STATE OF NEW YORK, OKSANA HULINSKY, AND RE-
`GINA CREARY MOLINELLI,
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`v.
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`Plaintiffs-Appellants,
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`COUNTY OF WESTCHESTER,
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`Defendant-Appellee.*
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`_____________________________________
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`23-155
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`* The Clerk of Court is respectfully directed to amend the caption to conform to the above.
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`1
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`For Plaintiffs-Appellants:
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`For Defendant-Appellee:
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`CHRISTOPHER A. FERRARA (Michael McHale, on the
`brief), Thomas More Society, Whitestone, NY and
`Omaha, NE.
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`JOHN M. NONNA, Westchester County Attorney (Justin
`R. Adin, Deputy County Attorney, Shawna C. Mac-
`Leod, Senior Assistant County Attorney, on the brief),
`Westchester County Attorney’s Office, White Plains,
`NY.
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`Appeal from a January 25, 2023 order of the United States District Court for the Southern
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`District of New York (Halpern, J.).
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`UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
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`DECREED that the appeal is DISMISSED for lack of appellate jurisdiction.
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`40 Days for Life, White Plains 40 Days for Life, Oksana Hulinsky, and Regina Creary
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`Molinelli (together, “Appellants”) are pro-life organizations and advocates, respectively, who as-
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`sert that Westchester County’s (the “County”) recently enacted Reproductive Health Care Facili-
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`ties Access Act (the “Act”) impermissibly restricts their right to facilitate and engage in sidewalk
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`counseling outside of abortion clinics. Appellants brought constitutional challenges to seven of
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`the Act’s provisions delimiting activity around reproductive health centers and sought a prelimi-
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`nary injunction to enjoin enforcement of these provisions. On appeal, Appellants seek review of
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`what they contend was the district court’s “effective denial” of their request for injunctive relief
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`as to only the Act’s so-called “[b]ubble [z]one” provision, Appellants’ Br. 6, which makes it a
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`criminal offense to approach within eight feet of another person for the purpose of engaging in
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`“oral protest, education, or counseling” when inside a one-hundred-foot radius of a reproductive
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`health care facility, Westchester Cnty., N.Y., Charter & Admin. Code § 425.31(i) (2023). We
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`assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal,
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`which we recount only as necessary to explain our decision to dismiss for lack of jurisdiction.
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`2
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`Pursuant to 28 U.S.C. § 1292(a)(1), we have jurisdiction over appeals from “[i]nterlocutory
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`orders of the district courts of the United States . . . granting, continuing, modifying, refusing or
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`dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review
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`may be had in the Supreme Court.” Even if an order does not speak in terms of injunctive relief,
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`jurisdiction under § 1292(a)(1) may nevertheless lie “where an order has the ‘practical effect’ of
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`granting or denying an injunction[.]” Abbott v. Perez, 138 S. Ct. 2305, 2319 (2018) (quoting
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`Carson v. Am. Brands, Inc., 450 U.S. 79, 83 (1981)). “An order has the practical effect of grant-
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`ing injunctive relief within the meaning of section 1292(a)(1) if it is ‘directed to a party, enforce-
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`able by contempt, and designed to accord or protect some or all of the substantive relief sought by
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`a complaint[.]’” HBE Leasing Corp. v. Frank, 48 F.3d 623, 632 (2d Cir. 1995) (quoting Abish v.
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`Nw. Nat’l Ins. Co., 924 F.2d 448, 453 (2d Cir. 1991)). To invoke § 1292(a)(1) in the absence of
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`an order specifically addressed to injunctive relief, a party must show that an interlocutory order
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`(1) “might have a serious, perhaps irreparable, consequence” and (2) “can be effectively chal-
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`lenged only by an immediate appeal.” RSS WFCM2018-C44 - NY LOD, LLC v. 1442 Lexington
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`Operating DE LLC, 59 F.4th 586, 593 n.5 (2d Cir. 2023) (quoting Carson, 450 U.S. at 84); accord
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`Sahu v. Union Carbide Corp., 475 F.3d 465, 467 (2d Cir. 2007).
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`Here, Appellants claim that the district court “effectively denied” their request for a pre-
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`liminary injunction against the County’s bubble zone restrictions as reflected by the district court’s
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`(1) statements at the January 18, 2023 premotion conference indicating that it viewed their chal-
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`lenge to the Act’s bubble zone provision as substantively identical to that which it rejected in a
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`related case;1 and (2) decision declining to separately adjudicate their bubble zone claim from the
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`1 Approximately two weeks before this premotion conference, the district court granted the
`County’s motion to dismiss in Vitagliano v. County of Westchester, a related case involving a sidewalk
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`3
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`rest of their challenges to the Act. Appellants’ Br. 7. Neither of these cited bases, whether
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`viewed collectively or in isolation, amount to an order with the “practical effect” of denying Ap-
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`pellants’ requested injunction.
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`Appellants characterize the district court’s statements during the premotion conference
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`communicating its predisposition to deny Appellants’ request to enjoin the County’s bubble zone
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`restriction as practically denying this aspect of their motion for a preliminary injunction. Despite
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`its musings, however, the district court did not purport to resolve any facet of Appellants’ motion
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`at this premotion conference, and we decline to construe such statements as having any controlling
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`effect on the parties’ legal relationship without indication this was the court’s intent. These state-
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`ments are not a legal ruling “enforceable by contempt” or “designed to accord or protect some or
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`all of the substantive relief sought by [Appellants],” and thus did not work a practical denial of
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`their claim for injunctive relief. HBE Leasing Corp., 48 F.3d at 632. A contrary conclusion
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`risks transforming district court remarks reflecting perhaps an inchoate view of an issue’s merits
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`into appealable interlocutory orders. In these circumstances, the district court’s denial of Appel-
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`lants’ request to enjoin the bubble zone restriction may well have been an inevitability, but
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`§ 1292(a)(1) does not permit Appellants to appeal before the district court enters an order to that
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`effect.
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`Furthermore, the district court’s refusal to separately adjudicate Appellants’ bubble zone
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`claim undercuts, rather than supports, Appellants’ assertion of jurisdiction. In declining to certify
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`Appellants’ proposed order denying injunctive relief on their bubble zone claim, the district court
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`counselor’s constitutional challenge to only the County’s bubble zone restriction. See No. 22 Civ. 9370
`(PMH), 2023 WL 24246 (S.D.N.Y. Jan. 3, 2023). We have today separately issued an opinion resolving
`the appeal of the district court’s decision to dismiss Vitagliano.
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`4
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`determined that it saw “no basis in law to bifurcate the motion for preliminary injunction” and that
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`it would “consider [Appellants’] request for preliminary injunctive relief as to all of the challenged
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`provisions of Section 425.31 once the motion is sub judice.” SPA 25. Rather than practically
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`deny any component of Appellants’ motion for preliminary injunctive relief, the district court
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`simply informed the parties that it would consider the motion in its entirety once it was fully
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`briefed. Appellants have cited no case, and we have found none, sustaining jurisdiction under
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`§ 1292(a)(1) where the district court had not issued an order that had a substantive effect on the
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`parties’ legal relationship.
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`Even if the combination of the district court’s statements at the premotion conference and
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`denial of Appellants’ request to rule separately on the sole claim presented on this appeal somehow
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`practically denied their request for injunctive relief, Appellants have failed to indicate why this
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`ruling could “be effectively challenged only by an immediate appeal.” 1442 Lexington Operat-
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`ing, 59 F.4th at 593 n.5 (quoting Carson, 450 U.S. at 84). Less than two months after Appellants’
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`motion for a preliminary injunction was fully briefed, on April 24, 2023, the district court issued
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`a decision denying Appellants’ motion for injunctive relief as to the six other provisions they chal-
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`lenged. See Hulinsky v. County of Westchester, — F. Supp. 3d —, No. 22 Civ. 6950 (PMH),
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`2023 WL 3052267 (S.D.N.Y. Apr. 24, 2023). But for their rush to the Court of Appeals, Appel-
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`lants have provided no reason why their perceived denial of their bubble zone claim could not have
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`been resolved along with their other challenges to the Act.
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`In short, Appellants invoked our appellate jurisdiction before the district court issued a
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`substantive ruling on any component of their motion for injunctive relief. Because Appellants
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`have not appealed from an appealable interlocutory order, we lack jurisdiction over this appeal.
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`*
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`*
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`*
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`5
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`We have considered Appellants’ remaining arguments and find them to be without merit.
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`Accordingly, the appeal is DISMISSED for lack of appellate jurisdiction.
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`FOR THE COURT:
`Catherine O’Hagan Wolfe, Clerk of Court
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`6
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