Hopkins v. Jegley et al

Filing 110

ORDER denying 99 defendants' motion to stay preliminary injunction pending appeal and for a temporary administrative stay, to the extent the Court retains jurisdiction over these matters. Signed by Judge Kristine G. Baker on 1/25/2021. (jbh)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
FREDERICK W. HOPKINS, M.D., M.P.H, et al.
v.

PLAINTIFFS

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

LARRY JEGLEY, Prosecuting Attorney for
Pulaski County, et al.

DEFENDANTS

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 91st
Arkansas General Assembly of 2017, Act 45 (H.B. 1032), codified at Ark. Code Ann. §§ 20-161801 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. § 2016-108(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

  “June Medical” in the Eighth Circuit opinion is referring to June Medical Services. v.
Russo, 140 S. Ct. 2013, 2020 WL 3492640 (2020)(plurality opinion). 
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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 stay

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preliminary 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 other

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parties, 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.

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    As the parties recognize, the Eighth Circuit has not clearly articulated what standard
applies to motions for administrative stays, but it has, at times, applied the same standard that
applies to motions to stay pending appeal (Dkt. No. 100, at 14; 109, at 2). Accordingly, the Court
will evaluate both of defendants’ requests for stay under the same standard.

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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. Bachman, 514 F. Supp. 2d 1156, 1170 (D. Neb. 2007).
Here, the relief defendants appear to seek is reconsideration on the merits of the Court’s
preliminary injunction.

Complete reconsideration of the Court’s preliminary injunction is

unavailable under Rule 62(d). Prior to filing their notice of appeal, defendants did not file a motion
for reconsideration under Rule 54 or a motion to modify the preliminary injunction under Rule 65.
Regardless, the Court denies defendants’ motion under Rule 62 and the four-factor test for
the reasons stated in the Court’s Order granting plaintiffs’ second motion for preliminary
injunction. With regard to the first factor—likelihood of success on the merits—this Court has
already reviewed the record evidence and applicable law and found that plaintiffs have standing
and are likely to prevail on their claims challenging each of the Mandates.

Furthermore,

defendants’ motion repeats many of the arguments already ruled upon by this Court, and the Court
is not persuaded to reconsider its prior decisions based on the arguments defendants now make in
their motion to stay. Defendants do not point the Court to, and the Court is not aware of, any new
law to support defendants’ claims.
The Court also finds that defendants have not established that: (1) they will suffer
irreparable harm absent a stay of the preliminary injunction; (2) plaintiffs will not suffer an
irreparable harm if the Court grants a stay; and (3) the public interest favors a stay. Defendants
argue that the State’s inability to enforce its statutes constitutes an irreparable harm because “the
inability to enforce its duly enacted plans clearly inflicts irreparable harm on the State.” (Dkt. No.

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100, at 44 (quoting Abbott v. Perez, 138 S. Ct. 2305, 2324 n.17 (2018)). The Supreme Court noted
that such irreparable harm does not occur if “that statute is unconstitutional . . . .” Id. at 2324.
This Court found that plaintiffs are likely to prevail on their claim that the Mandates at issue in
this case are unconstitutional either on their face or as applied as challenged by plaintiffs for the
reasons stated in the preliminary injunction. The Court therefore declines to find that the State of
Arkansas will be irreparably harmed if it cannot enforce what likely will be proven to be
unconstitutional statutes.
Further, the Court previously found that any harm defendants can show is outweighed by
the substantial harm that Dr. Hopkins, LRFP, and, where applicable, the large fraction of women
for whom the Mandate is relevant would face if defendants were able to enforce the Mandates at
issue in this case (Dkt. No. 97, at 150, 186, 215-216, 251-52). Defendants’ arguments in their
motion to stay do not persuade the Court to reconsider this decision. Accordingly, the Court
declines to reconsider its finding that plaintiffs and their patients face an imminent and irreparable
harm if defendants are able to enforce the statutes at issue.
Similarly, the Court concludes that a stay pending appeal is not in the public interest. As
explained in detail in this Court’s order granting plaintiffs’ motion for a second preliminary
injunction, it is in the public interest to preserve the status quo and to give the Court an opportunity
to evaluate fully the lawfulness of the Mandates at issue without subjecting Dr. Hopkins, LRFP,
their patients, or the public to any of the laws’ potential harms if the Mandates were to be enforced
pending appeal. Defendants’ arguments do not persuade the Court otherwise. Accordingly, for
all of these reasons, the Court finds that defendants have failed to establish that either the public
interest or the balance of equities favor a stay at this time.

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Finally, defendants assert that the preliminary injunction will “last indefinitely” and
constitutes permanent relief (Dkt. No. 100, at 45). This argument lacks merit. The preliminary
injunction lasts only until this Court determines the merits of this case. The preliminary injunction
preserves the positions the parties were in before the conflicts created by the likely unconstitutional
Mandates arose. The Court’s remedy goes “no further than necessary to address the constitutional
wrong supported” by the record. Gerlich v. Leath, 152 F. Supp. 3d 1152, 1180 (S.D. Iowa 2016)
(citations omitted). None of defendants’ arguments convince the Court that alternative injunctive
relief is more appropriate.
III.

Conclusion

Defendants have failed to meet their burden for a stay of the preliminary injunction pending
appeal. The Court also finds that defendants have failed to meet their burden for a temporary
administrative stay of the preliminary injunction. To the extent it retains jurisdiction over these
matters, the Court denies defendants’ motion to stay preliminary injunction pending appeal and
for a temporary administrative stay (Dkt. No. 99).
So ordered this 25th day of January, 2021.

_______________________________
Kristine G. Baker
United States District Judge 

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