United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE
2, 2019, Defendants the Trustees of the Klein Independent
School District and the Trustees of the Lewisville
Independent School District gave notice that they have
appealed the Court's Order, dated April 25, 2019 (the
“Order”), enjoining the enforcement of House Bill
89, codified at Tex. Gov. Code §2270.001 et
seq. (“H.B. 89”). (Not., Dkt. 87, at 1). Now
before the Court is Defendant Ken Paxton's (the
“State”) motion for a stay of this matter pending
appeal of the Order, (Mot., Dkt. 83), and responsive
briefing, (Dkts. 88, 89). For the reasons that follow, the
Court will deny the motion.
Rule of Civil Procedure 62(d) provides that “[w]hile an
appeal is pending from an interlocutory order or final
judgment that grants, continues, modifies, refuses,
dissolves, or refuses to dissolve or modify an injunction,
the court may suspend, modify, restore, or grant an
injunction.” In determining whether to grant a stay
pending appeal, 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 harmed absent a stay; (3) whether
issuance of the stay will substantially injure the other
parties interested in the proceeding; and (4) where the
public interest lies.” Planned Parenthood of
Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d
406, 410 (5th Cir. 2013) (citation omitted). “A stay is
not a matter of right, ” however, “even if
irreparable injury might otherwise result.” Nken v.
Holder, 556 U.S. 418, 433 (2009) (quoting Virginian
R. Co. v. U.S., 272 U.S. 658, 672 (1926)). Rather, the
decision to grant a stay pending appeal is “an exercise
of judicial discretion, ” and “[t]he party
requesting a stay bears the burden of showing that the
circumstances justify an exercise of that discretion.”
is substantial overlap between the four factors courts must
consider in determining whether to stay an action and the
four factors governing preliminary injunctions. Id.
(citing Winter v. Natural Resources Defense Council,
Inc., 555 U.S. 7, 24 (2008)). The Court has therefore
already largely addressed the four factors for a stay in
determining that Plaintiffs were entitled to a preliminary
injunction enjoining the enforcement of H.B. 89. To the
extent the State merely repeats arguments the Court has
already considered and rejected, it has failed to meet its
burden of showing that the Court should exercise its
discretion to stay this case. See Kahara Bodas Co. v.
Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 264
F.Supp.2d 484, 487 (S.D. Tex. 2002) (rejecting motion to stay
raising the same arguments considered and rejected in
determining that a preliminary injunction was warranted). The
Court addresses below additional support now offered by the
State with respect to its reasserted arguments, as well as
arguments now made by the State for the first time.
initial matter, however, it is unclear what standard the
State attempts to satisfy in meeting its burden under the
four-factor test for a stay. It asserts that it “has
made a strong showing that [it] is likely to succeed on the
merits, ” thus invoking the standard articulated in
Planned Parenthood, 734 F.3d at 410. (Reply, Dkt.
89, at 1). But by citing to Ruiz v. Estelle, 650
F.2d 555, 565 (5th Cir. 1981), the State appears to invoke
the alternative standard provided in that case.
(Id.). Ruiz held that “on motions for
stay pending appeal the movant need not always show
a ‘probability' of success on the merits; instead,
the movant need only present a substantial case on the merits
when a serious legal question is involved and show that the
balance of the equities weighs heavily in favor of
granting the stay.” 650 F.2d at 565 (emphases added).
This alternative standard is applicable in cases “where
relative harm and the uncertainty of final disposition
justify it.” Id.
the State the benefit of the doubt, the Court considers its
motion under both standards. However, the Court finds that
under either standard, the State has failed to show that the
Court should exercise its discretion to stay its injunction.
Likelihood of Success on the Merits
the State recycles its argument that Rumsfeld v.
FAIR, 547 U.S. 47 (2006), governs this case, and that
under it, Plaintiffs boycotts are not speech. (Mot., Dkt. 83,
at 2). The Court has addressed and rejected this argument.
(See Order, Dkt. 82, at 23-26). Part of the
Court's analysis involved (but did not depend on) the
fact that FAIR does not once mention
Claiborne, boycotts, or even the decision to
withhold patronage. (See id. at 24). Rather,
FAIR was about providing the military equal access
to law students for recruitment purposes. 547 U.S. at 51
(“[The Solomon Amendment] specifies that if any part of
an institution of higher education denies military recruiters
access equal to that provided other recruiters, the entire
institution would lose certain federal funds.”). Now
the State argues that in their briefing, the FAIR
plaintiffs referred to their own activities as a boycott and
cited to Claiborne four times. (Mot., Dkt. 83, at
3). In the State's view, this means that “the
conduct at issue in FAIR . . . was unambiguously
boycotting conduct.” (Id. at 2). That the
FAIR plaintiffs chose to characterize their conduct
as a boycott does not change the fact that the Supreme Court
did not do so, however. If anything, the State has made it
all the more clear that because the Supreme Court was invited
to consider the FAIR plaintiffs' activities as a
boycott, its decision not to do so was deliberate. To read
FAIR, as the State does, to hold that political
boycotts are not protected speech, without citing to or
discussing the foundational Claiborne decision
(despite the fact that it was thoroughly briefed and
presented) and notwithstanding the Court's conspicuous
avoidance of any discussion of boycotts, strains credulity.
Court therefore reaffirms its conclusion that the case
directly applicable here is Claiborne.
Claiborne expressly interprets the scope of First
Amendment protection for political boycotts. FAIR
does not; it avoids doing so. Moreover, as
previously noted, to the extent that there is any tension
between Claiborne's and FAIR's
holdings, this Court-and the Fifth Circuit-is bound to follow
Claiborne. See Agostini v. Felton, 521 U.S.
203, 237 (1997) (quoting Rodriguez de Quijas v.
Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989))
(“If a precedent of [the Supreme] Court has direct
application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the Court of
Appeals should follow the case which directly controls,
leaving to [the Supreme] Court the prerogative of overruling
its own decisions.”).
the State repeats its argument that H.B. 89 does not restrict
speech, and therefore it “cannot constitute content or
viewpoint discrimination” and “does not compel
speech.” (Mot., Dkt. 83, at 3). As explained at length
in the Order, political boycotts are protected speech.
(See Dkt. 82, at 23-29). To the extent the State now
argues that H.B. 89 does not restrict speech because
“Plaintiffs remain free to speak about any issue
surrounding the Israeli-Palestinian conflict, ” (Mot.,
Dkt. 83, at 3), this argument is a non-sequitur. Plaintiffs
need not be silenced for their speech to be
the State takes issue with the Court's “reli[ance]
on statements surrounding the passage of [H.B. 89], and even
those surrounding this litigation, ” to conclude that
H.B. 89 was not intended to serve the compelling state
interest of preventing national origin discrimination but was
intended to “silence speech with which Texas
disagrees.” (Mot., Dkt. 83, at 4 (citing Order, Dkt.
82, at 32)). The State neglects to mention the Court's
conclusion that the plain text of the statute makes
clear that it is severely underinclusive with respect to its
purported goal of preventing national origin discrimination.
(Order, Dkt. 82, at 32-35). H.B. 89 does not prohibit any
company from boycotting any person or entity of Israeli
national origin-and on that basis-so long as the person or
entity is anywhere in the world outside Israel or its
controlled territories, and is not doing business in
Israel or those territories. (Id. at 33). This
“[u]nderinclusiveness raises serious doubts about
whether the government is in fact pursuing the interest it
invokes, rather than disfavoring a particular speaker or
viewpoint.” (Id. (quoting Nat'l Inst.
Of Family & Life Advocs. v. Becerra, 138 S.Ct. 2361,
2376 (2018))). This result follows even if the statements the
Court cited in the Order do not reflect the motivations of
the entire Texas Legislature-an assertion the State now
makes, (see Mot., Dkt. 83, at 4), but for which it
points to no evidence.
the State's newly asserted justification that because
“Israel is overwhelmingly populated by Israelis,
” “[t]o boycott Israel is necessarily to
discriminate on the basis of Israeli national origin, ”
(id.), is both illogical on its face and does not
cure the statute's underinclusiveness problem. The State
offers this justification for the first time in the instant
motion to stay and cites no evidence that it played any part
in the Legislature's decision to pass H.B. 89. It is an
illogical justification because boycotting the nation of
Israel to protest the Israeli government's actions is not
“necessarily” the same as, or even remotely
related to, boycotting an Israeli person or entity because
that person or entity is Israeli. As described in the Order,
Plaintiffs allege that they boycott Israel because of the
Israeli government's treatment of the Palestinian people,
not on the basis of Israeli national origin. (See
Dkt. 82, at 4-11). They boycott HP on this basis, for
example, even though HP is not an entity of Israeli national
origin. And notwithstanding its logical infirmity, the
State's newly asserted justification for H.B. ...