Hopkins v. Jegley

• Decision Date: 25 January 2021
• Docket Number: Case No. 4:17-cv-00404-KGB
• Parties: FREDERICK W. HOPKINS, M.D., M.P.H, et al. PLAINTIFFS v. LARRY JEGLEY, Prosecuting Attorney for Pulaski County, et al. DEFENDANTS
• Court: U.S. District Court — Eastern District of Arkansas

FREDERICK W. HOPKINS, M.D., M.P.H, et al. PLAINTIFFS v. LARRY JEGLEY, Prosecuting Attorney for

Pulaski County, et al. DEFENDANTS

Case No. 4:17-cv-00404-KGB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

January 25, 2021

ORDER

Before the Court is defendants' motion to stay preliminary injunction pending appeal and for a temporary administrative stay (Dkt. No. 99). Plaintiffs have responded in opposition to the motion (Dkt. No. 109). For the following reasons, the Court denies both the motion to stay preliminary injunction pending appeal and the motion for a temporary administrative stay.

I. Procedural Background

Initially, Dr. Hopkins filed this suit on June 20, 2017, pursuant to 42 U.S.C. § 1983. On December 22, 2020, Dr. Hopkins amended his complaint, and Little Rock Family Planning Services, Inc. ("LRFP"), joined Dr. Hopkins as a plaintiff in filing suit against defendants Larry Jegley, Prosecuting Attorney for Pulaski County; Sylvia D. Simon, M.D., Chair of the Arkansas State Medical Board; Robert Breving, Jr., M.D.; Elizabeth Anderson; Rhys L. Branman, M.D.; Edward Gardner, M.D.; Veryl D. Hodges, D.O.; Rodney Griffin, M.D.; Betty Guhman; William L. Rutledge, M.D.; John H. Scribner, M.D.; Brian T. Hyatt, M.D.; Timothy C. Paden, M.D.; Don R. Phillips, M.D.; David L. Staggs, M.D., as officers and members of the Arkansas State Medical Board; Jose Romero, M.D., the Secretary of the Arkansas Department of Health; Phillip Gilmore, Ph.D.; Perry Amerine, O.D.; Marsha Boss, P.D.; Lane Crider, P.E.; Brad Erney, D.M.D.; Melissa Faulkenberry, D.C.; Anthony N. Hui, M.D.; Balan Nair, M.D.; Greg Bledsoe, M.D.; Stephanie Barnes Beerman; Glen Bryant, M.D.; Dwayne Daniels, M.D.; Vanessa Falwell, A.R.P.N.; Darren Flamik, M.D.; Thomas Jones, R.S.; David Kiessling, D.P.M.; Carl Riddell, M.D.; Clay Waliski; Terry Yamauchi, M.D.; Donald Ragland; Catherine Tapp, M.P.H.;. Susan Weinstein, D.V.M; James Zini, D.O., officers and members of the Arkansas Department of Health, and their successors in office, in their official capacities (Dkt. No. 82).

In this suit, Dr. Hopkins and LRFP mount a constitutional challenge to four acts of the 91^st Arkansas General Assembly of 2017, Act 45 (H.B. 1032), codified at Ark. Code Ann. §§ 20-16-1801 to 1807 ("D&E Mandate"); Act 733 (H.B. 1434), codified at Ark. Code Ann. §§ 20-16-1901 to 1910 ("Medical Records Mandate"); Act 1018 (H.B. 2024), codified at Ark. Code Ann. § 20-16-108(a)(1) ("Local Disclosure Mandate"); and Act 603 (H.B. 1566), codified at Ark. Code Ann. §§ 20-17-801 to 802 ("Tissue Disposal Mandate") (collectively "the Mandates"). By its terms, H.B. 1434 was to take effect January 1, 2018. The remaining three laws, H.B. 1032, H.B. 2024, and H.B. 1566, were to take effect on or about July 30, 2017.

The Court previously enjoined enforcement of these statutes in a preliminary injunction entered on July 28, 2017 (Dkt. Nos. 35, 36). On August 25, 2017, a notice of appeal of this Court's preliminary injunction was filed (Dkt. No. 38). Neither party asked this Court or the United States Court of Appeals for the Eighth Circuit for a stay while the appeal was pending (Dkt. No. 91). After three years, and based on intervening decisions issued by the United States Supreme Court, the Eighth Circuit vacated this Court's preliminary injunction order and remanded "for reconsideration in light of Chief Justice Roberts's separate opinion in June Medical, which is controlling, as well as the Supreme Court's decision in Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780 (2019) (per curiam)." (Dkt. No. 49, at 7).¹

Prior to the Eighth Circuit's mandate issuing, Dr. Hopkins and LRFP moved for a second preliminary injunction and/or a temporary restraining order (Dkt. No. 73). Defendants moved to strike the second preliminary injunction motion (Dkt. No. 75).

Plaintiffs also moved for an ex parte temporary restraining order based on the same findings and this Court's legal conclusions granting the 2017 preliminary injunction (Dkt. No. 69, at 3). Defendants responded in opposition (Dkt. No. 78). The Court conducted a hearing (Dkt. No. 91). The Court granted Dr. Hopkins and LRFP's motion for temporary restraining order and temporarily enjoined the enforcement of the Mandates to preserve the status quo until the merits of Dr. Hopkins and LRFP's pending motions, and defendants' pending motion to strike, could be determined (Dkt. No. 83).

Defendants responded in opposition to the motion for a second preliminary injunction and/or a temporary restraining order (Dkt. No. 92). Plaintiffs replied (Dkt. No. 93). The Court conducted a hearing (Dkt. No. 94). The Court denied defendants' motion to strike and granted a second preliminary injunction (Dkt. No. 97). The Court preliminarily enjoined defendants, and all those acting in concert with them, from enforcing the requirements of the D&E Mandate as applied to Dr. Hopkins and LRFP (H.B. 1032), the Medical Records Mandate (H.B. 1434), the Local Disclosure Mandate as applied to Non-CMA Teenage Patients (H.B. 2024), and the Tissue Disposal Mandate (H.B. 1566) until further order from this Court (Id.).

On January 7, 2021, defendants filed a notice of appeal as to the preliminary injunction (Dkt. No. 98). On the same day, defendants also filed a motion to stay preliminary injunction pending appeal, for a temporary administrative stay, and to shorten plaintiffs' time to respond (Dkt. No. 99). The Court shortened the time for plaintiffs to respond (Dkt. No. 103). Plaintiffs responded (Dkt. No. 109). For the following reasons, the Court denies defendants' motion to staypreliminary injunction pending appeal and motion for a temporary administrative stay (Dkt. No. 99).

II. Discussion

Defendants move for a stay of this Court's Order granting plaintiffs' second motion for preliminary injunction pending appeal under Federal Rule of Civil Procedure 62(c) and Federal Rule of Appellate Procedure 8(a)(1) (Dkt. No. 99, at 1). Defendants also request a temporary administrative stay of the preliminary injunction "pending this Court's consideration of a full stay pending appeal, and pending resolution of a subsequent Eighth Circuit stay motion, if Defendants file any such motion." (Id.). Among other things, defendants argue that "[t]hese laws should have taken effect years ago," and due to the prior preliminary injunction and the December 2020 temporary restraining order, "[t]his state of affairs has allowed Plaintiffs, as a practical matter, to obtain final relief through preliminary proceedings." (Dkt. No. 100, at 1). Plaintiffs counter, in part, that they are likely to succeed on the merits of their claims, defendants will not be harmed by the preliminary injunction, plaintiffs will suffer irreparable harm if the challenged Mandates take effect, and the public interest favors denying the stay (Dkt. No. 109, at 1).

Federal Rule of Civil Procedure 62(d) provides that, "[w]hile an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party's rights." Fed. R. Civ. P. 62(d). The Court must consider four factors to determine whether defendants have made a sufficient showing for this Court to grant a stay of the preliminary injunction pending appeal. These factors are: (1) whether the movant has made a showing of likelihood of success on the merits, (2) whether the movant has made a showing of irreparable injury if the stay is not granted, (3) whether granting the stay would substantially harm the otherparties, and (4) whether granting the stay would serve the public interest.² Org. for Black Struggle v. Ashcroft, 978 F.3d 603, 607 (8th Cir. 2020) (citing Brakebill v. Jaeger, 905 F.3d 553, 557 (8th Cir. 2018) (citing Hilton v. Braunskill, 481 U.S. 770 (1987)).

The Eighth Circuit has emphasized a balancing of equities approach to determine whether to grant a stay pending appeal. See Walker v. Lockhart, 678 F.2d 68, 70-71 (8th Cir. 1982) (the court maintains a flexible approach when applying the factors and balancing the equities between the parties, and the court "need not engage in detailed analysis of [movant's] probability of success on the merits"); see also Brady v. Nat'l Football League, 640 F.3d 785, 793 (8th Cir. 2011); Arkansas Peace Ctr. v. Arkansas Dep't of Pollution Control, 992 F.2d 145, 147 (8th Cir. 1993).

Because defendants filed a notice of appeal of this Court's preliminary injunction (Dkt. No. 98), the Court first addresses the limit of its jurisdiction with respect to that Order before considering the merits of defendants' motion. See Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) ("The filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal."). The Eighth Circuit has created a limited exception to the general rule of divestiture of district court jurisdiction so that the district court may modify an injunction pending appeal "in the kinds of cases where the court supervises a continuing course of conduct and where as new facts develop additional supervisory action by the court is required . . . ." Bd. of Educ. of St. Louis v. State of Mo., 936 F.2d 993, 996 (8th Cir. 1991) (quoting Hoffmann v. Beer Drivers & Salesmen's Local Union No. 888, 536 F.2d 1268, 1276 (9th Cir.1976)). "The rule codifies the long-established and narrowly limited right of the trial court to make orders appropriate to preserve the status quo while the case is pending in an appellate court, but does not restore the jurisdiction to the district court to adjudicate anew the merits of the case after either party has invoked its right to appeal and jurisdiction has passed to an appellate court." GP Indus., LLC v. Ba...