NOT PRECEDENTIAL
UNITED STATES CO URT OF APPEALS FOR THE THIRD CIRCUIT

____________

No. 19-2939

____________ ANTHONY J. PIPITO, Appellant

v. LOWER BUCKS COUNTY JOIN T MUNICIPAL AUTHORITY; VIJAY RAJPUT, IN HIS INDIVIDUAL CAPACITY ONLY

____________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-18-cv-04885) District Court Judge: Honor able Mark A. Kearney

____________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) March 26, 2020 Before: JORDAN, RESTREPO and FUENTES, Circuit Judges

. (Filed: Augu st 13, 2020)

____________

OPINION *

____________ RESTREPO, Circuit Judge

. Anthony J. Pipito, a wastewater operat or at the Lower Bucks County Joint Municipal Authority, brought this First Amendment action under 42 U.S.C. § 1983 against the Authority and its managing director, Dr. Vija y Rajput. He claims that

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2 provisions of a discip linary memorandum issued by Rajp ut infringe on his right to engage in protect ed speech outside of the workpl ace. The District Court granted summary judgment in the Defenda nts’ favor, while also conc luding that Pi pito lacked constitutional standing. For th e reasons that follow, we conclude that the District Court should not have reached the merits of the case, and we agree with the District Court that Pipito failed to demonstrate injury in fact to establish standing. Accordingly, we will vacate the District Court’s grant of summary judgment and remand the case for dismissal based on lack of standing.
I Pipito is a certified wast ewater operator at the Au thority, which operates a wastewater treatment plant a nd a water filtration plant in Bucks County, Pennsylvania. This case centers on a disciplinary memorandum (t he Memorandum) that Rajput, the Authority’s managing director, issued to Pipito on July 26, 2018. The Memorandum, with “Harassment” as its subject line, explains that its “purpose . . . is to documen t the complaints brought against [Pipito] from [other employees of the Authority] Walter Applet on . . . and Leonard Rodak . . . includ[ing] but . . . not limited to, creat ing a hostile work environmen t, harassment, intimidation, making disparaging/derogatory remarks, mocking and breach of the Civility Policy using foul lang uage.” App. 72. The Memorandum goes on to explain that “[i]t is the responsibility of the Authorit y to provide a safe, harassment free and non-hostile work environment to all its employ ees at all the times within the Authority’s premises.” App. 72. The Memorandum requires that Pipito adhere to the fo llowing rules:3 1. No contact whatsoever with Leonard Rodak except reporting problems pertaining to the plant operation. 2. No contact whatsoever with Walter Appleton except in an emergency situation and/or as specified in the [Wastewater Treatment Plant Standard Operating Procedures]. 3. Refrain from making any gesture/mock ing/disparaging or derogatory remarks/rumors to or about Walter Appleton, Leonard R odak or any other employee. 4. You are not to engage in any disc ussions regarding Leonard Rodak and Walter Appleton wi th other employees. 5. Compliance with the Authority’s Civility Policy. 6. Present any WWTP/Personnel/Human Re source concerns directly to Michael Andrews, P. E., WWTP Manager. App. 72 (noting that failure to comply may result in “disciplinary action . . . up to and including termination of empl oyment with Authority”). On November 13, 2018, Pipito filed a civil rights action under 42 U.S.C. § 1983 against the Authority and Rajput alle ging that the Memorandum unlawfully restricts his First Amendment right to engage in protect ed speech outside of the workplace. The Authority and Rajput moved to dismiss his Complaint. On February 21, 2019, the District Cour t denied their motion. The parties subsequently filed cross-motions for summary judgment. On July 24, 2019, the District Court gr anted summary judgme nt in favor of the Authority and Rajput. Pipito timely appealed.
II A This Court has appellate jurisdiction ov er this case pursua nt to 28 U.S.C. § 1291. 1 We exercise plenary review over a Di strict Court’s standi ng determination.

1 Notwithstanding our stat utory jurisdiction over this action, our conclusion that Pipito has not established constitution al standing “means that we do not have subject matter jurisdiction to re ach the merits of [his] claims.” Finkelman v. Nat’l4 AT&T Commc’ns of N.J., In c. v. Verizon N.J., Inc. , 270 F.3d 162, 168 (3d Cir. 2001) (citing Gen. Instrument Corp. of Del. v. Nu–Tek Elecs. & Mfg., Inc. , 197 F.3d 83, 86 (3d Cir. 1999)). In reviewing a decision regarding standing, “each element . . . must be supported in the same way as any other matt er on which the plaintiff bears the burden of proof, i.e. , with the manner and degree of evidence required at the successive stages of litigation.” Finkelman , 810 F.3d at 194 (quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 561 (1992)). Here, the District Court ruled that Pipito lacked standing at the summary judgment stage. Su mmary judgment is appropr iate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no ge nuine issue as to any ma terial fact and that the moving party is en titled to judgment as a matter of law.” S.E.C. v. Hughes Capital Corp. , 124 F.3d 449, 452 (3d Cir. 1997) (quoting Fed. R. Ci v. P. 56(c)). This Court “must view all evidence in favor of the non-moving party.” Id.
B Constitutional standing, under Article III, § 2, requires three elements: “injury in fact,” “a causal co nnection between the injury and th e conduct complained of,” and a likelihood that a favorable decision will re dress the plaintiff’s injury . Lujan , 504 U.S. at 560–61. To establish injury in fact, the element at issue here, a plaintiff must demonstrate an invasion of a legally prot ected interest that is (1) “concrete and particularized” and (2) “actual or imminent, not conjectural or hypothetical.” Id. at

Football League , 810 F.3d 187, 192 n.31 (3d Cir. 2016) (citing Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 101–02 (1998) (“Fo r a court to pr onounce upon the meaning or the constitutionality of a state or federal law when it has no jurisdiction to do so is, by very definition, fo r a court to act ultra vires.”)).5 560 (internal quotation marks omitted). “The part y invoking federal jurisdiction bears the burden of establishing standing.” Susan B. Anthony List v. Driehaus , 573 U.S. 149, 158 (2014) (i nternal quotation marks omitted). If the plaintiff intends to demonstrate “imminent” injury in a pre-enforcement action, he or she must demons trate “a realistic danger of sust aining a direct injury” if the challenged ru le is enforced. Babbitt v. Unite d Farm Worke rs Nat’l Union , 442 U.S. 289, 298 (1979); see also N.J. Physicians, Inc. v. President of U.S. , 653 F.3d 234, 238 (3d Cir. 2011 ) (requiring “a realistic chan ce—or a genuine probability—that a future injury will occur”); Pa. Family Inst., Inc. v. Black , 489 F.3d 156, 169 (3d Cir. 2007) (concluding that a party’s claim of chilled speech was “t oo speculative” to establish standing). “Specifically, we have he ld that a plaintiff sa tisfies the injury-infact requirement where he alleges ‘an inte ntion to engage in a course of conduct arguably affected with a cons titutional interest, but proscr ibed by a statute, and there exists a credible threat of prosecution thereunder.’” Susan B. Anthony List , 573 U.S. at 159 (quoting Babbit , 442 U.S. at 298). An allegation of injury caused by chil led speech must claim a “specific present objective harm or a threat of specific fu ture harm.” Laird v. Tatum , 408 U.S. 1, 13–14 (1972) (stating that “[a]llegations of a su bjective ‘chill’ are not . . . adequate”); see also Black , 489 F.3d at 166 n.10; Const. Party of Pa. v. Aichele , 757 F.3d 347, 364 (3d Cir. 2014) (noting that “a speculative series of conditi ons” would be insufficient to establish injury in fact). Courts have found standing in pre-en forcement First Amendment actions when plaintiffs have demonstrated a realistic potential for engagement in protected speech6 that the challenged rule prohibits. See, e.g. , Aichele , 757 F.3d at 364. In Aichele , this Court found a First Amendment challenge to portions of Pennsylvania’s election code justiciable because the appellants supported their claim with “sworn and uncontested declarations that their plans for seeking public office [were] directly impeded by the relevant provisions of the election code.” Id. Here, Pipito ar gues that the Memora ndum unlawfully rest ricts his protected speech outside the workplace b ecause it “does not circumscri be its restrictions to the Authority’s premises or while [he] is working.” Appellant Br. 11. Interpreting the Memorandum as applying outside the workplace, Pi pito argues that it would:

 “prohibit [him] from speaking with Roda k at church on matters of religion,”
 prohibit him from talking to Appleton “at a township meeting on matters of zoning policy,”
 prevent him “from reporting environmenta l violations commit ted by Rodak to the state Department of Environmental Protection,”
 prevent him “from filing a complain t with the U.S. Equal Employment Opportunity Commission [EEOC] against the Authority for racial discrimination in hiring,”
 “bar [him] from disclosing” corrupti on or wrongdoing at the Authority,
 dissuade him from attending “a protest in Doylestown (the county seat)” out of concern that he would come in contact with Rodak,
 make him “reluctant to go to a public me eting of the Authority’s board for fear of encountering Roda k and running afoul of the memorandum,”
 cause him to fear being fired for knocki ng on Rodak’s door if he were to run for public office and “pitch for his candi dacy” door-to-door, and
 make him fear losing hi s job if he were to “file a complaint with the Pennsylvania State Ethics Commission rega rding Rajput’s compliance with the Commonwealth’s conflict of interest proscriptions.” Appellant’s Br. 11, 23–24. The Authority asserts both that the Memorandum’s dire ctives are limited to the workplace and that Pipito’s “professed co ncerns” about chilled protected speech are7 “merely speculative scenarios.” 2 Appellees’ Br. 39. In line with the Authority’s arguments, the Dist rict Court found that Pipito lacked standing. App. 34 (“At best, we have Mr. Pipito’s beli ef if he wanted to speak on matters of pub lic concern, he would suffer discipline at work. Th ere is nothing in the record to support this contention.”). We agree. We must note, however, that the District Court erred by addressing the merits of Pipito’s First Amendment claim despite finding a lack of standing. Standing is a “fundamental jurisdiction al question;” therefore, “cha llenges to standing must be addressed before reac hing the merits.” AT&T Commc’ns of N.J., Inc. , 270 F.3d at 168 (citing Steel Co. , 523 U.S. at 102); see also Finkelman , 810 F.3d at 193 (“A federal court’s obligation to assure itself that it has subject matter jurisdiction over a claim is antecedent to its power to reach the merits of that claim.”). We agree with the District Court that the record fails to support Pipito’s premise—that the Memorandum applies outside the workplace. The Memorandum’s opening paragraph plainly stat es that its purpose is to document workplace harassment complaints against Pipito, and it specifies that “[i]t is the responsibility of the Authority to provide a safe, ha rassment free and non-hostile work environment to all its employees at all the times within the Authority’s premises .” App. 72 (emphasis added). By any reasonable reading of the Memorandum’s plain language (and absent any evidence to refute that r eading), it is constrained to th e workplace. This eliminates any “credible threat of pros ecution” for protected speech that takes place outside of

2 Pipito conceded that if the Memorandum applied onl y to his speech at work, he would not have a viab le claim. He does not ch allenge the Memorandum’s application to his on-the-job speech.8 the workplace. Susan B. Anthony List , 573 U.S. at 159 (quoting Babbit , 442 U.S. at 298). Pipito has not demonstrated any reas on to believe that the Authority would punish him for his protected speech outside of the workplace notwithstanding the Memorandum’s clear language. Separately, none of Pi pito’s asserted chilling effects graduate from a “subjective ‘chill’” to a “specific present ob jective harm or a thre at of specific future harm

. ” Laird , 408 U.S. at 13–14. Pr ior to the Memorandum, Pi pito had never run for public office, had never participated in a protest, had never had discussions with Mr. Rodak or Mr. Appleton at the Authority’s board meetin gs, had never attempted to contact or contacted the dist rict attorney’s office rega rding the Authority or its employees, had never made a public complaint about Rodak’s, Rajput’s, or the Authority’s conduct or practices that he finds concerning, and had never reported discrimination to the EEOC. Further, there is no indication that Pipito previously engaged in any other purportedly chille d speech that would indicate a future probability of him doi ng so—and no indication that an y of his hypothetical chilled speech examples amount to more than a “speculative series of conditions.” Aichele , 757 F.3d at 364. His hypothetical s simply fail to establis h “a realistic danger of sustaining a direct injury.” Babbitt , 442 U.S. at 298. Given the above analysis, Pipito has failed to establish injury in fact. Accordingly, we will vacate the District Court’s grant of summary judgment and remand the case for dismissal based on lack of standing.