United States District Court, W.D. Washington, Seattle
ORDER DENYING MOTION TO STAY PRELIMINARY
Marsha J. Pechman, United States Senior District Court Judge
MATTER comes before the Court on Defendants' Motion to
Stay the Preliminary Injunction Pending Appeal. (Dkt. No.
238.) Having reviewed the Motion, the Responses (Dkt. Nos.
250, 257), the Reply (Dkt. No. 261), the Jurisdictional
Briefing (Dkt. Nos. 275, 276, 277) and all related papers,
the Court DENIES the Motion.
December 11, 2017, the Court issued a nationwide preliminary
injunction barring Defendants from “taking any action
relative to transgender individuals that is inconsistent with
the status quo” that existed prior to President
Trump's July 26, 2017 announcement” of a policy
excluding transgender people from serving openly in the
military (the “Ban”). (Dkt. No. 103 at 23.)
March 23, 2018, Defendants released an Implementation Plan
and a 2018 Memorandum which purported to “revoke”
the 2017 Memorandum and replace it with a “new
policy” that does not mandate a “categorical
prohibition on transgender service members, ” but
rather targets those who have been diagnosed with gender
dysphoria. (Dkt. No. 226 at 3-7; see also Dkt. No.
224, Exs. 1, 3.)
April 13, 2018, the Court granted partial summary judgment
for Plaintiffs and the State of Washington, and ordered the
preliminary injunction to remain in effect. (See
Dkt. No. 233.) In so doing, the Court rejected
Defendants' claim that the subsequent Implementation Plan
and 2018 Memorandum represented a “new policy.”
(Id. at 12.) Instead, the Court found that the
Implementation Plan and 2018 Memorandum “threaten the
very same violations that caused it and others to enjoin the
Ban in the first place.” (Id.)
April 30, 2018, Defendants filed a notice of appeal with the
Ninth Circuit. (See Dkt. No. 236.) On the same day,
Defendants filed this motion requesting an expedited ruling
no later than May 4, 2018. (Dkt. No. 238.) After the Court
declined to issue an expedited ruling (Dkt. No. 240),
Defendants filed a separate Motion for a Stay Pending Appeal
in the Ninth Circuit. See Karnoski v. Trump, No.
18-35347, Dkt. No. 3 (9th Cir. May 4, 2018). The Ninth
Circuit has yet to issue a ruling.
the filing of a notice of appeal generally divests a district
court of jurisdiction, Federal Rule of Civil Procedure 62(c)
allows the Court “to issue further orders with respect
to an injunction, even pending appeal, in order to preserve
the status quo or ensure compliance with its earlier
orders.” Doe v. Trump, 284 F.Supp.3d 1172
(W.D. Wash. 2018) (citing Nat. Res. Def. Council, Inc. v.
Southwest Marine, Inc., 242 F.3d 1163, 1166 (9th Cir.
2001)). The Court's exercise of jurisdiction may not
“adjudicate anew the merits of the case” nor
“materially alter the status of the case on
appeal.” Southwest Marine, 242 F.3d at 1166.
Motion to Stay
pending appeal “is an intrusion into the ordinary
processes of administration and judicial review.”
Nken v. Holder, 556 U.S. 418, 427 (2009) (internal
quotation marks and citation omitted). In determining whether
to grant a stay, the Court considers: (1) whether Defendants
have made a strong showing that they are likely to succeed on
the merits; (2) whether Defendants will be irreparably
injured absent a stay; (3) whether a stay will substantially
injure Plaintiffs and Washington; and (4) whether the public
interest supports a stay. Id. at 434.
Likelihood of Success on the Merits
Court finds that Defendants have not made a “strong
showing” that they are likely to ...