`
`Case: 23-50224 Document: 00516749471 Page: 1 Date Filed: 05/12/2023Case: 23-50224 Document: 78 Page: 1 Date Filed: 05/12/2023
`
`
`
`No. 23-50224
`In the United States Court of Appeals
`for the Fifth Circuit
`LEILA GREEN LITTLE, JEANNE PURYEAR, KATHY KENNEDY, REBECCA JONES,
`RICHARD DAY, CYNTHIA WARING, AND DIANE MOSTER,
`Plaintiffs-Appellees,
`
`
`
`v.
`LLANO COUNTY, RON CUNNINGHAM, IN HIS OFFICIAL CAPACITY AS LLANO COUNTY
`JUDGE, JERRY DON MOSS, IN HIS OFFICIAL CAPACITY AS LLANO COUNTY
`COMMISSIONER, PETER JONES, IN HIS OFFICIAL CAPACITY AS LLANO COUNTY
`COMMISSIONER, MIKE SANDOVAL, IN HIS OFFICIAL CAPACITY AS LLANO COUNTY
`COMMISSIONER, LINDA RASCHKE, IN HER OFFICIAL CAPACITY AS LLANO COUNTY
`COMMISSIONER, AMBER MILUM, IN HER OFFICIAL CAPACITY AS LLANO COUNTY
`LIBRARY SYSTEM DIRECTOR, BONNIE WALLACE, IN HER OFFICIAL CAPACITY AS LLANO
`COUNTY LIBRARY BOARD MEMBER, ROCHELLE WELLS, IN HER OFFICIAL CAPACITY AS
`LLANO COUNTY LIBRARY BOARD MEMBER, RHONDA SCHNEIDER, IN HER OFFICIAL
`CAPACITY AS LLANO COUNTY LIBRARY BOARD MEMBER, AND
`GAY BASKIN, IN HER OFFICIAL CAPACITY AS LLANO COUNTY LIBRARY BOARD MEMBER,
`Defendants-Appellants.
`
`
`
`
`
`Appeal from the United States District Court
`for the Western District of Texas, Austin Division
`1:22-cv-00424-RP
`APPELLEES’ RESPONSE IN OPPOSITION TO APPELLANTS’
`MOTION TO STAY DISTRICT COURT PROCEEDINGS
`PENDING APPEAL
`(Counsel Listed Inside Cover)
`
`APPELLEES’ RESPONSE TO MOTION TO STAY
`
`
`
`
`
`

`

`
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`Case: 23-50224 Document: 00516749471 Page: 2 Date Filed: 05/12/2023Case: 23-50224 Document: 78 Page: 2 Date Filed: 05/12/2023
`
`
`
`Katherine P. Chiarello
`(TX Bar No. 24006994)
`Ryan A. Botkin
`(TX Bar No. 00793366)
`María Amelia Calaf
`(TX Bar No. 24081915)
`Botkin Chiarello Calaf PLLC
`1209 Nueces Street
`Austin, Texas 78701
`Tel: 512-615-2341
`Fax: 737-289-4695
`ryan@bccaustin.com
`katherine@bccaustin.com
`mac@bccaustin.com
`
`Ellen V. Leonida
`(CA Bar No. 184194)
`Matthew Borden
`(CA Bar No. 214323)
`Marissa R. Benavides
`(NY Bar No. 5796891)
`Max Bernstein
`(NY Bar No. 5609037)
`BraunHagey & Borden LLP
`351 California Street, 10th Floor
`Tel: 415-599-0210
`Fax: 415-276-1808
`leonida@braunhagey.com
`borden@braunhagey.com
`benavides@braunhagey.com
`bernstein@braunhagey.com
`
`Attorneys for Plaintiffs-Appellees
`
`
`
`
`
`
`
`Jonathan F. Mitchell
`Texas Bar No. 24075463
`Mitchell Law PLLC
`111 Congress Avenue, Suite 400
`Austin, Texas 78701
`(512) 686-3940 (phone)
`(512) 686-3941 (fax)
`jonathan@mitchell.law
`
`Dwain K. Rogers
`Texas Bar No. 00788311
`County Attorney
`
`Matthew L. Rienstra
`Texas Bar No. 16908020
`First Assistant County Attorney
`
`Llano County Attorney’s Office
`Llano County Courthouse
`801 Ford Street
`Llano, Texas 78643
`(325) 247-7733
`dwain.rogers@co.llano.tx.us
`matt.rienstra@co.llano.tx.us
`
`Attorneys for Defendants-Appellants
`
`
`
`
`
`
`
`
`
`
`
`
`
`APPELLEES’ RESPONSE TO MOTION TO STAY
`
`
`
`
`
`

`

`
`
`Case: 23-50224 Document: 00516749471 Page: 3 Date Filed: 05/12/2023Case: 23-50224 Document: 78 Page: 3 Date Filed: 05/12/2023
`
`
`
`No. 23-50224
`In the United States Court of Appeals
`for the Fifth Circuit
`LEILA GREEN LITTLE, JEANNE PURYEAR, KATHY KENNEDY, REBECCA JONES,
`RICHARD DAY, CYNTHIA WARING, AND DIANE MOSTER,
`Plaintiffs-Appellees,
`
`
`
`v.
`LLANO COUNTY, RON CUNNINGHAM, IN HIS OFFICIAL CAPACITY AS LLANO COUNTY
`JUDGE, JERRY DON MOSS, IN HIS OFFICIAL CAPACITY AS LLANO COUNTY
`COMMISSIONER, PETER JONES, IN HIS OFFICIAL CAPACITY AS LLANO COUNTY
`COMMISSIONER, MIKE SANDOVAL, IN HIS OFFICIAL CAPACITY AS LLANO COUNTY
`COMMISSIONER, LINDA RASCHKE, IN HER OFFICIAL CAPACITY AS LLANO COUNTY
`COMMISSIONER, AMBER MILUM, IN HER OFFICIAL CAPACITY AS LLANO COUNTY
`LIBRARY SYSTEM DIRECTOR, BONNIE WALLACE, IN HER OFFICIAL CAPACITY AS LLANO
`COUNTY LIBRARY BOARD MEMBER, ROCHELLE WELLS, IN HER OFFICIAL CAPACITY AS
`LLANO COUNTY LIBRARY BOARD MEMBER, RHONDA SCHNEIDER, IN HER OFFICIAL
`CAPACITY AS LLANO COUNTY LIBRARY BOARD MEMBER, AND
`GAY BASKIN, IN HER OFFICIAL CAPACITY AS LLANO COUNTY LIBRARY BOARD MEMBER,
`Defendants-Appellants.
`
`CERTIFICATE OF INTERESTED PERSONS
`
`The undersigned counsel of record certifies that the following listed persons
`
`and entities as described in the fourth sentence of Rule 28.2.1 have an interest in
`
`the outcome of this case. These representations are made in order that the judges of
`
`this court may evaluate possible disqualification or recusal.
`
`Plaintiffs-Appellees
`Leila Green Little
`Jeanne Puryear
`Kathy Kennedy
`Rebecca Jones
`
`APPELLEES’ RESPONSE TO MOTION TO STAY
`
` i
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`
`
`

`

`
`
`Case: 23-50224 Document: 00516749471 Page: 4 Date Filed: 05/12/2023Case: 23-50224 Document: 78 Page: 4 Date Filed: 05/12/2023
`
`
`
`Richard Day
`Cynthia Waring
`Diane Moster
`
`Plaintiffs-Appellants’ Counsel
`Katherine P. Chiarello
`Ryan A. Botkin
`María Amelia Calaf
`Botkin Chiarello Calaf PLLC
`
`Ellen V. Leonida
`Matthew Borden
`Marissa R. Benavides
`Max Bernstein
`BraunHagey & Borden LLP
`
`Defendants-Appellants
`Llano County
`Ron Cunningham
`Jerry Don Moss
`Peter Jones
`Mike Sandoval
`Linda Raschke
`Amber Milum
`Bonnie Wallace
`Rochelle Wells
`Rhonda Schneider
`Gay Baskin
`
`Defendants-Appellants’ Counsel
`Jonathan F. Mitchell
`Mitchell Law PLLC
`
`Dwain K. Rogers
`Matthew L. Rienstra
`Llano County Attorney’s Office
`
`
`APPELLEES’ RESPONSE TO MOTION TO STAY
`
` ii
`
`
`
`

`

`
`
`Case: 23-50224 Document: 00516749471 Page: 5 Date Filed: 05/12/2023Case: 23-50224 Document: 78 Page: 5 Date Filed: 05/12/2023
`
`
`
`TABLE OF CONTENTS
`
`CERTIFICATE OF INTERESTED PERSONS .............................................................................i
`
`TABLE OF CONTENTS ............................................................................................................... iii
`
`TABLE OF AUTHORITIES ......................................................................................................... iv
`
`I.
`
`II.
`
`DEFENDANTS’ STAY MOTION SHOULD BE DENIED BECAUSE
`THEY DID NOT FAIRLY PRESENT IT TO THE DISTRICT COURT ......................... 3
`
`DEFENDANTS HAVE NOT PROVEN THAT ANY OF THE NKEN
`FACTORS SUPPORTS A STAY, MUCH LESS THAT ALL OF THEM
`NECESSITATE EXTRAORDINARY RELIEF ................................................................ 6
`
`A.
`
`B.
`
`C.
`
`D.
`
`Defendants Have Not Proven Irreparable Harm ..................................................... 7
`
`Defendants Have Not Shown a Strong Likelihood of Success on Their Appeal.. 12
`
`1.
`
`2.
`
`The District Court Properly Determined that Defendants’ Voluntary
`Cessation Does Not Obviate Plaintiffs’ First Amendment Claims ........... 13
`
`Defendants’ Conduct Constituted Impermissible Discrimination in
`Violation of the First Amendment ............................................................ 14
`
`Plaintiffs Will Be Harmed by an Unjustified Stay in Trial Proceedings .............. 20
`
`The Public Interest Disfavors a Stay of Proceedings ............................................ 21
`
`CERTIFICATE OF COMPLIANCE ............................................................................................ 24
`
`CERTIFICATE OF SERVICE ..................................................................................................... 25
`
`
`
`
`
`
`APPELLEES’ RESPONSE TO MOTION TO STAY
`
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`
`
`
`

`

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`Case: 23-50224 Document: 00516749471 Page: 6 Date Filed: 05/12/2023Case: 23-50224 Document: 78 Page: 6 Date Filed: 05/12/2023
`
`
`
`TABLE OF AUTHORITIES
`
` Pages(s)
`
`Cases
`Alice L. v. Dusek,
`492 F.3d 563 (5th Cir. 2007) ..............................................................................4, 5
`Barber v. Bryant,
`833 F.3d 510 (5th Cir. 2016) .................................................................................. 7
`Board of Education v. Pico,
`457 U.S. 853 (1982) ....................................................................................... 16, 17
`Campbell v. St. Tammany Parish School Board,
`64 F.3d 184 (5th Cir. 1995) ....................................................................... 2, 16, 17
`Chem. Weapons Working Grp. (CWWG) v. Dep’t of the Army,
`101 F.3d 1360 (10th Cir. 1996) .............................................................................. 5
`Chiras v. Miller,
`432 F.3d 606 (5th Cir. 2005) ..................................................................... 2, 16, 17
`Chrysler Motors Corp. v. Auto Body Panels of Ohio, Inc.,
`908 F.2d 951 (Fed. Cir. 1990) ................................................................................ 9
`Cincinnati v. Discovery Network, Inc.,
`507 U.S. 410 (1993) ..............................................................................................16
`Ctr. for Biological Diversity, Inc. v. BP Am. Prod. Co.,
`704 F.3d 413 (5th Cir. 2013) ................................................................................13
`Cumberland Tel. & Telegraph Co. v. La. Pub. Serv. Comm’n,
`260 U.S. 212 (1922) ................................................................................................ 4
`Earl v. Boeing Co.,
`21 F.4th 895 (5th Cir. 2021) .................................................................................22
`Eli Lilly & Co., Inc. v. Generix Drug Sales, Inc.,
`460 F.2d 1096 (5th Cir. 1972) ................................................................................ 8
`Hilton v. Braunskill,
`481 U.S. 770 (1987) ................................................................................................ 7
`
`APPELLEES’ RESPONSE TO MOTION TO STAY
`
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`
`
`

`

`
`
`Case: 23-50224 Document: 00516749471 Page: 7 Date Filed: 05/12/2023Case: 23-50224 Document: 78 Page: 7 Date Filed: 05/12/2023
`
`
`
`Iancu v. Brunetti,
`139 S. Ct. 2294 (2019) ..........................................................................................15
`In re Montes,
`677 F.2d 415 (5th Cir. 1982) .................................................................................. 5
`Int’l Soc. for Krishna Consciousness, Inc. v. Lee,
`505 U.S. 672 (1992) ..............................................................................................15
`Matal v. Tam,
`137 S. Ct. 1744 (2017) ..........................................................................................15
`Nat. Employees Treasury Union v. Von Raab,
`808 F.2d 1057 (5th Cir. 1987) ................................................................................ 3
`Nken v. Holder,
`556 U.S. 418 (2009) ....................................................................................... 1, 6, 7
`R.A.V. v. City of St. Paul, Minn.,
`505 U.S. 377 (1992) ..............................................................................................15
`Reed v. Town of Gilbert, Ariz.,
`576 U.S. 155 (2015) ..............................................................................................15
`Robinson v. Hunt County, Tex.,
`921 F.3d 440 (5th Cir. 2019) ................................................................................15
`Rosenberger v. Rector & Visitors of Univ. of Va.,
`515 U.S. 819 (1995) ..............................................................................................15
`Ruiz v. Estelle,
`650 F.2d 555 (5th Cir. 1981) .................................................................................. 5
`Sund v. City of Wichita Falls, Tex.,
`121 F. Supp. 2d 530 (N.D. Tex. 2000) .......................................................... 13, 18
`Taylor v. W.L. Sterrett,
`640 F.2d 663 (5th Cir. 1981) .................................................................................. 4
`Texas v. United States,
`40 F.4th 205 (5th Cir. 2022) ................................................................................... 6
`
`APPELLEES’ RESPONSE TO MOTION TO STAY
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` v
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`
`
`

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`Case: 23-50224 Document: 00516749471 Page: 8 Date Filed: 05/12/2023Case: 23-50224 Document: 78 Page: 8 Date Filed: 05/12/2023
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`
`
`United States v. American Library Association, Inc.,
`539 U.S. 194 (2003) ..............................................................................................17
`W. Virginia State Bd. of Educ. v. Barnette,
`319 U.S. 624 (1943) ..............................................................................................17
`Rules
`
`Fed. R. App. P. 8 ............................................................................................... 1, 3, 5
`
`Fed. R. App. P. 8(a) ................................................................................................... 4
`
`Fed. R. App. P. 8(a)(1) ............................................................................................... 5
`
`Fed. R. App. P. 8(a)(2)(A)(i), (ii) .............................................................................. 1
`
`
`
`
`
`APPELLEES’ RESPONSE TO MOTION TO STAY
`
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`
`
`

`

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`Case: 23-50224 Document: 00516749471 Page: 9 Date Filed: 05/12/2023Case: 23-50224 Document: 78 Page: 9 Date Filed: 05/12/2023
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`
`
`Defendants-Appellants’ (“Defendants”) motion to stay proceedings in the
`
`District Court during their interlocutory appeal of a preliminary injunction is
`
`procedurally improper because they filed their motion before allowing the District
`
`Court to rule on the issue as required by Fed. R. App. P. 8. Defendants’ motion is
`
`also substantively unwarranted because they have not offered any proof of
`
`irreparable injury; nor have they met their burden, under Nken v. Holder, 556 U.S.
`
`418, 427 (2009), of proving the other factors necessary to establish that they are
`
`entitled to extraordinary relief.
`
`Defendants offer no evidence that “moving first in the district court would
`
`be impracticable” or that “a motion having been made, the district court denied the
`
`motion or failed to afford the relief requested,” as required by Rule 8(a)(2)(A)(i)
`
`and (ii). To the contrary, Defendants moved the District Court for relief then filed
`
`an identical motion herein thirty hours later. Their motion thus falls outside the
`
`plain language of Rule 8 and defeats its purpose, which is to provide this Court
`
`with the ability to review an analysis of the dispute by the decision maker closest
`
`to the facts, issues and equities. This failure alone is fatal to their motion.
`
`The motion separately fails because Defendants cannot prove irreparable
`
`injury. Defendants claim two types of harm, neither of which is irreparable or
`
`extraordinary. First, they claim that they are irreparably injured because discovery
`
`is proceeding in District Court. Mot. at 10. But ongoing discovery is not an
`
`APPELLEES’ RESPONSE TO MOTION TO STAY
`
` 1
`
`
`
`

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`Case: 23-50224 Document: 00516749471 Page: 10 Date Filed: 05/12/2023Case: 23-50224 Document: 78 Page: 10 Date Filed: 05/12/2023
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`
`
`extraordinary harm; it is exactly what the Rules provide for in every case. And
`
`discovery would not be ongoing but for Defendants’ refusal to produce it in the
`
`first instance, requiring seven motions to compel and a court order. Defendants
`
`also assert that the expedited briefing schedule in this Court—which Defendants
`
`requested—is irreparably injuring them. ECF No. 64 (“Mot.”) at 16. Both
`
`“injuries” Defendants claim are self-inflicted, and neither warrants a stay of
`
`District Court proceedings.
`
`Defendants also are unlikely to win on the merits. The District Court’s
`
`findings of unconstitutional viewpoint and content discrimination are based on
`
`substantial evidence of Defendants’ discriminatory intent—two days of testimony,
`
`hundreds of exhibits, and 120 pages of briefing and supporting evidence.
`
`Defendants’ theory that the government has unfettered authority to censor library
`
`books based on their viewpoint has been rejected by this Court. See Campbell v. St.
`
`Tammany Parish School Board, 64 F.3d 184 (5th Cir. 1995). Defendants’ reliance
`
`on Chiras v. Miller, 432 F.3d 606 (5th Cir. 2005), and other cases addressing the
`
`state’s ability to select school textbooks is misplaced. Even in the context of a
`
`school, where the state is tasked with educating minors, the conduct found by the
`
`District Court here is prohibited. See id. at 619-20 (“If a Democratic school board,
`
`motivated by party affiliation, ordered the removal of all books written by or in
`
`favor of Republicans, few would doubt that the order violated the constitutional
`
`APPELLEES’ RESPONSE TO MOTION TO STAY
`
` 2
`
`
`
`

`

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`Case: 23-50224 Document: 00516749471 Page: 11 Date Filed: 05/12/2023Case: 23-50224 Document: 78 Page: 11 Date Filed: 05/12/2023
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`
`
`rights of the students . . .The same conclusion would surely apply if an all-white
`
`school board, motivated by racial animus, decided to remove all books authored by
`
`blacks or advocating racial equality and integration.”).
`
`Finally, the balance of equities and public interest militate against a stay.
`
`Just last week this Court ruled that Defendants’ appeal would be expedited, and
`
`Defendants’ motion to stay the preliminary injunction (“Stay Motion I”) would be
`
`carried over to the argument on the merits. ECF No. 58. The expedited appeal
`
`weighs even further in favor of keeping things as they are. See, e.g., Nat.
`
`Employees Treasury Union v. Von Raab, 808 F.2d 1057, 1060 (5th Cir. 1987)
`
`(denying motion to stay injunction when appeal had been expedited because
`
`keeping injunction in place “for another three weeks is not, in our view, hardship
`
`sufficient to warrant our action when plenary consideration of the motion can be
`
`afforded by the oral argument panel concurrently with its consideration of the
`
`merits of this case”).
`
`For all of these reasons, Defendants’ motion should be denied.
`
`I.
`
`DEFENDANTS’ STAY MOTION SHOULD BE DENIED BECAUSE
`THEY DID NOT FAIRLY PRESENT IT TO THE DISTRICT COURT
`This motion is the second time within two weeks that Defendants have
`
`violated Rule 8 by seeking a stay from this Court before allowing the District
`
`Court to rule on the issue. This type of motion practice subverts the structure of the
`
`legal system and violates the plain language of the Rules.
`
`APPELLEES’ RESPONSE TO MOTION TO STAY
`
` 3
`
`
`
`

`

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`Case: 23-50224 Document: 00516749471 Page: 12 Date Filed: 05/12/2023Case: 23-50224 Document: 78 Page: 12 Date Filed: 05/12/2023
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`
`
`“‘It is the general rule that a district court is divested of jurisdiction upon the
`
`filing of the notice of appeal with respect to any matters involved in the appeal.
`
`However, where an appeal is allowed from an interlocutory order, the district court
`
`may still proceed with matters not involved in the appeal.’” Alice L. v. Dusek, 492
`
`F.3d 563, 564-65 (5th Cir. 2007) (quoting Taylor v. W.L. Sterrett, 640 F.2d 663,
`
`667-68 (5th Cir. 1981)).
`
`In recognition of this, Defendants have moved to stay proceedings in the
`
`District Court. Under the Federal Rules of Appellate Procedure, Defendants were
`
`required to obtain a decision by the District Court on its request to stay
`
`proceedings before seeking the same relief from this Court. Generally, a party may
`
`not ask an appellate court for a stay or injunction unless the trial court has already
`
`denied that same request. Fed. R. App. P. 8(a). “The requirement that the
`
`application [for a stay of proceedings] be first made to the district court is the case
`
`law rule.” Fed. R. App. P. 8(a) Advisory Committee’s Note to 1967 adoption. Such
`
`has been the case for a century—as Chief Justice Taft recognized, “we are
`
`generally inclined to refer [stay] applications of this kind to the . . . judges who
`
`have heard the whole matter, have read the record, and can pass on the issue
`
`without additional labor.” Cumberland Tel. & Telegraph Co. v. La. Pub. Serv.
`
`Comm’n, 260 U.S. 212, 219 (1922) (Taft, C.J.) (referring request for injunction of
`
`APPELLEES’ RESPONSE TO MOTION TO STAY
`
` 4
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`

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`Case: 23-50224 Document: 00516749471 Page: 13 Date Filed: 05/12/2023Case: 23-50224 Document: 78 Page: 13 Date Filed: 05/12/2023
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`
`
`proceedings to district court). Similarly here, the District Court had the benefit of
`
`hearing and reading the full record of the case prior to issuing its decision.
`
`This Court has also recognized this requirement. See, e.g., Alice L., 492 F.3d
`
`at 565 (citing Fed. R. App. P. 8(a)(1) in refusing to hear request for stay of
`
`proceedings pending resolution of interlocutory appeal when appellant “made no
`
`argument before the district court for a stay of trial”).
`
`Applying Rule 8, this Court has explained that “the district court should
`
`have the opportunity to rule on the reasons and evidence presented in support of a
`
`stay” prior to appellate consideration. Ruiz v. Estelle, 650 F.2d 555, 567 (5th Cir.
`
`1981) (per curiam); see also In re Montes, 677 F.2d 415, 416 (5th Cir. 1982)
`
`(refusing request to suspend injunction without district court decision as appellate
`
`court “cannot take evidence or hear matters initially” and is “dependent entirely on
`
`the record made in a trial court”). That is because “the fundamentally different
`
`roles of appellate and trial courts mandate consideration of [a stay motion’s] new
`
`evidence by the district court under Fed. R. Civ. P. 62(c) before Rule 8
`
`proceedings in th[e appellate] court . . . Only upon completion of the district
`
`court’s factfinding role, should [the appellate] court consider any relief pending
`
`appeal.” Chem. Weapons Working Grp. (CWWG) v. Dep’t of the Army, 101 F.3d
`
`1360, 1362 (10th Cir. 1996).
`
`APPELLEES’ RESPONSE TO MOTION TO STAY
`
` 5
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`

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`Case: 23-50224 Document: 00516749471 Page: 14 Date Filed: 05/12/2023Case: 23-50224 Document: 78 Page: 14 Date Filed: 05/12/2023
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`
`
`That Defendants “do not . . . expect the district court to grant the motion”
`
`below, Mot. at 5, is not adequate grounds to flout Rule 8’s requirement.
`
`Defendants’ speculation as to how the District Court will rule on their request does
`
`not supplant a judicial determination, and Defendants cite no authority to support
`
`such efforts. Accordingly, the Court should deny this motion as procedurally
`
`improper.
`
`II. DEFENDANTS HAVE NOT PROVEN THAT ANY OF THE NKEN
`FACTORS SUPPORTS A STAY, MUCH LESS THAT ALL OF THEM
`NECESSITATE EXTRAORDINARY RELIEF
`Defendants’ motion fails on the merits as well. “A stay [pending appeal] is
`
`an extraordinary remedy.” Texas v. United States, 40 F.4th 205, 215 (5th Cir.
`
`2022) (per curiam) (quotation omitted) (denying federal agency’s request to stay
`
`vacatur of agency rule). It is “an intrusion into the ordinary processes of
`
`administration and judicial review, and accordingly is not a matter of right, even if
`
`irreparable injury might otherwise result to the appellant.” Nken, 556 U.S. at 427
`
`(internal citations omitted). “The party requesting a stay bears the burden of
`
`showing that the circumstances justify an exercise of [the court’s] discretion.” Id.
`
`at 433–34 (emphasis added). In deciding whether to stay a preliminary injunction
`
`pending appeal, federal courts consider four factors: (1) whether the stay applicant
`
`has made a strong showing that he is likely to succeed on the merits; (2) whether
`
`the applicant will be irreparably injured absent a stay; (3) whether issuance of the
`
`APPELLEES’ RESPONSE TO MOTION TO STAY
`
` 6
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`Case: 23-50224 Document: 00516749471 Page: 15 Date Filed: 05/12/2023Case: 23-50224 Document: 78 Page: 15 Date Filed: 05/12/2023
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`
`
`stay will substantially injure the other parties interested in the proceeding; and (4)
`
`where the public interest lies. Nken, 556 U.S.at 427 (quoting Hilton v. Braunskill,
`
`481 U.S. 770, 776 (1987)). The first two factors of this standard carry the greatest
`
`weight. Barber v. Bryant, 833 F.3d 510, 511 (5th Cir. 2016).
`
`Defendants must satisfy the four Nken factors to be entitled to a stay of
`
`proceedings. They cannot not satisfy any here: first, Defendants cannot be
`
`irreparably injured by completing required trial court proceedings while pursuing
`
`an appeal they requested to be expedited; second, Defendants continue to be unable
`
`to show likelihood of success on the merits of their appeal; third, a stay would
`
`cause Plaintiffs-Appellees (“Plaintiffs”) to suffer an unjustified delay of
`
`proceedings; and fourth, a stay of proceedings due to circumstances arising from
`
`Defendants’ own conduct does not advance the public interest.
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`A. Defendants Have Not Proven Irreparable Harm
`Defendants will not be harmed by completing their discovery obligations
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`while pursuing this appeal, nor will they be harmed by briefing the appeal while
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`completing these obligations. Defendants are required to complete trial court
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`proceedings regardless of this Court’s determination here, and the concurrent
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`timing of these requirements and the parties’ briefing on appeal results from
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`Defendants’ own request.
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`First, Defendants cite no authority for the proposition that doing discovery is
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`an irreparable harm. As noted above, the Federal Rules of Appellate Procedure
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`contemplate that discovery continues when a party takes an interlocutory appeal.
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`Moreover, the discovery at issue is being conducted now because, after
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`seven motions to compel, the District Court has ordered Defendants to provide key
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`evidence that they have been withholding since the outset of this case. See Ex. 2
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`(Leonida Decl.) ¶¶ 3, 19-20; Exs. 4-5. This evidence relates directly to Defendants’
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`claims that Defendant Milum alone engaged in “inevitable and permissible”
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`weeding.1 Mot. at 6. In contrast to Defendants having to produce court-ordered
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`discovery—which is a litigation process, not an injury—Plaintiffs are suffering
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`immediate harm from Defendants withholding evidence that contradicts arguments
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`that they are making to this Court and below. See infra Section II.C.
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`As set forth supra Part I, the District Court retains jurisdiction to proceed
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`with Plaintiffs’ underlying claims even as this Court considers the preliminary
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`injunction appeal. And the discovery required to try those claims will not be
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`affected by this Court’s decision as to whether the preliminary injunction was
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`proper; Plaintiffs are still entitled to a complete record of discovery on their claims
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`before proceeding to summary adjudication and trial. See Eli Lilly & Co., Inc. v.
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`Generix Drug Sales, Inc., 460 F.2d 1096, 1106 (5th Cir. 1972) (vacating portion of
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`1 While Defendants cast aspersions on Plaintiffs’ motivations for their discovery
`requests, this compelled discovery shows why such efforts have been necessary.
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`district court’s preliminary injunction decision that made a final determination on
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`the claims without notice to parties before fact discovery was complete); cf.
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`Chrysler Motors Corp. v. Auto Body Panels of Ohio, Inc., 908 F.2d 951, 954 (Fed.
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`Cir. 1990) (ruling on preliminary injunction motion “does not prejudge the
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`ultimate question on the merits”). Contrary to Defendants’ assertion, a stay will not
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`“obviate” the need for any of the discovery here, Mot. at 13, nor will it avert the
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`need to litigate and resolve Plaintiffs’ claims. Defendants have acknowledged as
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`much. See Ex. 1 (May 10, 2023 email from Defendants’ counsel stating “If the
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`district court or the Fifth Circuit decides to stay the district-court proceedings, it
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`will simply place a pause on discovery and summary-judgment briefing until the
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`appeal concludes.”). Moreover, to the extent that costs could even be considered
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`irreparable injury, Defendants’ concerns about “the unrecoverable costs that will
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`be inflicted on Llano County” absent a stay, Mot. at 13, ring hollow in the face of
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`their acknowledged obligation to complete discovery and summary judgment
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`briefing regardless of the outcome of the appeal.
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`Because Defendants must complete discovery and dispositive briefing on the
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`claims below, it is inevitable that Defendants will incur the burdens they describe.
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`It is as an accepted part of civil litigation.2 And the burdens of civil litigation are
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`2 It bears noting that Defendants have voluntarily incurred the cost of preparing
`and filing multiple motions while asserting concerns over the cost of inevitable
`court-ordered discovery, especially as it was also Defendants who made that
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`not irreparable harms.
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`Moreover, the burden is one that Defendants already should have satisfied.
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`Defendants’ conduct during discovery required Plaintiffs to file seven motions to
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`compel documents and testimony over the course of ten months, including a
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`motion the District Court granted to extend the fact discovery deadline so Plaintiffs
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`could obtain the discovery Defendants had refused to produce. See Ex. 2 ¶ 3.
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`At the April 27, 2023 argument on a subset of these motions, Defendants
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`represented to the District Court that they could complete the outstanding
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`discovery within thirty days. Ex. 3 (Mots. Hr’g Tr.) at 15:22. Relying on that
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`representation, the District Court ordered Defendants to produce responsive
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`documents they had failed to timely produce by May 30, 2023. Ex. 4 at 1-2
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`(admonishing Defendants for “a year’s worth of back-and-forth on the simplest
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`issue, which is the exchange of relevant e-mails”). The District Court further
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`ordered that Defendants sit for depositions after failing to appear at their noticed
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`depositions. Ex. 5. These obligations all come now because Defendants did not
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`satisfy them in a timely manner in the preceding months. Defendants cannot now
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`claim that they will be harmed by completing, at long last, this errant discovery.
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`Second, the fact that Defendants must brief their appeal while they complete
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`discovery unnecessarily costly by necessitating seven rounds of motion practice
`and multiple court hearings before agreeing to produce requisite discovery. Ex. 2
`¶ 3.
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`outstanding discovery is of Defendants’ own design. Defendants asked this Court
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`to expedite their appeal two days before representing to the District Court that they
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`could complete discovery in thirty days. ECF No. 14. Defendants did not inform
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`the District Court that their request to expedite the appeal was pending, or forecast
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`that their ability to complete discovery may be compromised if that request was
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`granted. See generally Ex. 3. Now, Defendants have received both the thirty-day
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`discovery extension they sought and the expedited appeal that they requested. They
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`cannot argue that this is irreparable harm.
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`Defendants do not acknowledge any of this in their motion. They do not
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`acknowledge that discovery will proceed regardless of the interlocutory appeal.
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`They do not acknowledge that the reason that discovery remains ongoing is
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`because of Defendants’ own conduct in the preceding months. And they do not
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`acknowledge that the concurrence of their discovery obligations and appellate
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`briefing is in accordance with their own representations and requests.3 Each of
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`these circumstances obviates Defendants’ claims that they are suffering or will
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`suffer irreparable harm. There is no harm arising from required discovery and
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`dispositive briefing; and there is no harm in overlapping obligations when
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`3 Nor do Defendants’ counsel acknowledge that this potential strain on their time
`generally appears to be of their own making. See Chris Geidner, “Jonathan
`Mitchell is too busy for court deadlines, but still has time to file new lawsuits,”
`Law Dork (Apr. 18, 2023), https://www.lawdork.com/p/jonathan-mitchell-is-too-
`busy.
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