The U.S. Department of Justice (DOJ) plans to appeal a Texas judge’s injunctionbarring the Obama administration from implementing guidelines aimed at protecting transgender students against discrimination.
DOJ attorneys announced in court documents Friday that they’ll file formal notice that they’re appealing the injunction to the 5th U.S. Circuit Court of Appeals on or before October 20.
U.S. District Judge Reed O’Connor issued the nationwide preliminary injunction in August, in response to a request from the Texas Attorney General’s Office, which is challenging the guidelines on behalf of more than a dozen states.
“DOJ has a number of strong procedural arguments,” said Ken Upton, senior counsel at the LGBT civil rights group Lambda Legal. “It will be interesting to see what the 5th Circuit does.”
Upton said it could be March or April before the 5th Circuit rules on whether to overturn the injunction. But as soon as the notice of appeal has been filed, the DOJ can request that the injunction be placed on hold while the 5th Circuit considers the case — a request that could be granted within weeks. If the DOJ obtains a stay of the injunction, the Obama administration could resume implementing the guidance.
A request for a stay of the injunction would first have to go to O’Connor, who would be likely to deny it, Upton said. But the DOJ could then request a stay from the 5th Circuit and, if necessary, the U.S. Supreme Court.
“Given the way the injunction binds the government agencies and DOJ, I think there is a good chance they might get a stay,” Upton said.
After O’Connor issued the injunction, DOJ attorneys filed a motion requesting that he clarify its scope. O’Connor heard arguments on the motion September 30 but has not yet ruled. The DOJ had requested that O’Connor do so by October 3.
Upton said he believes Friday’s filing — in which the DOJ announced it plans to file a notice of appeal this week — was intended “to nudge the judge to rule on the clarification motion before their appeal time runs out on October 20.”
“I think you could call it a friendly reminder that if he doesn’t rule by Thursday he’s going to lose jurisdiction of the case and it’s going to the 5th Circuit as is,” Upton said.
Federal officials say they will ask the U.S. 5th Circuit Court of Appeals to overturn an injunction issued by Fort Worth-based U.S. District Judge Reed O’Connor. On Tuesday, O’Connor reaffirmed that his ruling blocking the guidelines applied nationwide, not just in the 13 states that filed suit against the federal government.
O’Connor issued the original ruling in August on the same day millions of Texas children headed back to school, preventing the federal government from enforcing the guidelines as the case went through the courts.
In a 38-page order, O’Connor sided with Texas and 12 other states challenging the federal directive, saying the “status quo” should remain in place nationwide until the court rules on the case, or a federal appeals court provides further guidance, because the administration had not followed proper rule-making procedure in crafting the guidelines.
O’Connor did not, however, rule on the merits of the case, noting “the resolution of this difficult policy decision is not … the subject of this order.”
See here for more on the affirmation that the ruling was intended to be nationwide. It’s always dicey having to put one’s faith in the Fifth Circuit doing the right thing, but this is where we are, and the stakes are high. I suppose even if the Fifth Circuit fails to stop the madness, another lawsuit in a different circuit might generate a conflicting opinion, which would force SCOTUS to get involved sooner than I’m sure it wants to. Trail Blazers and Daily Kos have more.