Paul Goldman v. ROBERT BRINK, Chairman of the State Board of Elections

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-2180
PAUL GOLDMAN,
Plaintiff – Appellee,
v.
ROBERT BRINK, Chairman of the State Board of Elections, in his official
capacity; JOHN O’BANNON, Vice Chair of the State Board of Elections, in his
official capacity; JAMILAH D. LECRUISE, Secretary of the State Board of
Elections, in her official capacity; CHRISTOPHER PIPER, Commissioner of the
State Board of Elections, in his official capacity,
Defendants – Appellants,
and
VIRGINIA STATE BOARD OF ELECTIONS; GLENN YOUNGKIN, Governor
of Virginia, in his official capacity,
Defendants.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. David J. Novak, District Judge. (3:21-cv-00420-DJN-RAJ-SDT)
Argued: March 8, 2022 Decided: March 15, 2022
Before KING, WYNN, and RUSHING, Circuit Judges.
Remanded by unpublished order. Judge King directed entry of the order, with the
concurrences of Judge Wynn and Judge Rushing.

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ARGUED: Andrew Nathan Ferguson, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellants. Paul Goldman, Richmond, Virginia,
Appellee Pro Se. ON BRIEF: Mark R. Herring, Attorney General, Erin B. Ashwell, Chief
Deputy Attorney General, Donald D. Anderson, Deputy Attorney General, Michelle S.
Kallen, Solicitor General, A. Anne Lloyd, Deputy Solicitor General, Brittany M. Jones,
Deputy Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellants.

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ORDER OF REMAND
KING, Circuit Judge:
Pro se plaintiff Paul Goldman seeks to pursue this civil action in the Eastern District
of Virginia against several Commonwealth of Virginia defendants, alleging that Virginia’s
2021 House of Delegates election contravened the federal and state constitutions. The
district court dismissed all of Goldman’s claims against the Governor of Virginia and the
State Board of Elections on grounds of Eleventh Amendment sovereign immunity. See
Goldman v. Brink, No. 3:21-cv-00420 (E.D. Va. Oct. 12, 2021), ECF No. 40. The court
declined, however, to similarly dismiss Goldman’s federal claim against four of the
Board’s members. Those Board members thereupon noticed this appeal from the immunity
denial.
Upon careful consideration of the submissions of the parties and the oral argument
conducted on March 8, 2022, we are satisfied to remand this case to the district court for it
to determine — in the first instance — whether Goldman possesses Article III standing to
sue. See 28 U.S.C. § 2106. It is apparent that a determination of the standing to sue issue
“cannot be achieved simply by reviewing the plaintiffs’ pleadings and the limited record
on appeal.” See Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516, 536 (4th Cir. 2014)
(remanding for factfinding related to whether case presented a nonjusticiable political
question). Moreover, the resolution of the standing to sue issue will likely “require factual
development of the record . . . and possibly additional jurisdictional discovery.” Id.

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Accordingly, we remand for the district court to assess and resolve whether
Goldman possesses Article III standing to sue. We will, however, retain jurisdiction in this
appeal, which will be stayed pending resolution of the remand proceedings.
FOR THE COURT
/s/Patricia S. Connor
Clerk

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