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Amawi v. Pflugerville Independent School District

United States District Court, W.D. Texas, Austin Division

May 8, 2019

BAHIA AMAWI, Plaintiff,



         On May 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.


         Federal 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.” Id.


         There 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.

         As an 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.

         Giving 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.

         A. Likelihood of Success on the Merits

         First, 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.

         The 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.”).

         Second, 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 impermissibly chilled.

         Third, 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.

         Moreover, 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. ...

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