State of South Carolina v. United States et al

Filing 30

ORDER AND OPINION denying 27 Motion for Stay of the Preliminary Injunction Pending Appeal Signed by Honorable J Michelle Childs on 6/26/2018.(asni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
South Carolina,

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Plaintiff,
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v.
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United States;
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United States Department of Energy;
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Rick Perry, in his official capacity as
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Secretary of Energy;
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National Nuclear Security Administration; )
and,
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Lisa E. Gordon-Hagerty, in her official
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capacity as Administrator of the National )
Nuclear Security Administration and
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Undersecretary for Nuclear Security,
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Defendants.
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Civil Action No.: 1:18-cv-01431-JMC

ORDER AND OPINION

This matter is before the court pursuant to Defendants the United States, the Department
of Energy (“DOE”), the National Nuclear Security Administration (“NNSA”), Secretary of Energy
Rick Perry, and Administrator Gordon-Hagerty’s Motion to Stay the Preliminary Injunction
Pending Appeal (ECF No. 27). Defendants move under Federal Rule of Civil Procedure 62(c) to
stay the Preliminary Injunction Order entered by the court on June 7, 2018 (ECF No. 23) (“the
Injunction”), pending the resolution of their appeal to the United States Court of Appeals for the
Fourth Circuit (See ECF No. 26). (ECF No. 27 at 1.) The Injunction prevents Defendants from
terminating the mixed oxide fuel fabrication facility project (“MOX Facility”) currently under
construction at the Savannah River Site in Aiken County, South Carolina until this case can be

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decided on its merits. (ECF No. 23.) For the reasons below, the court DENIES Defendants’ Motion
to Stay the Preliminary Injunction Pending Appeal (ECF No. 27).
I.

RELEVANT BACKGROUND

On May 25, 2018, the State concurrently filed a complaint against Defendants 1 (ECF No.
1), a Motion for Preliminary Injunction (ECF No. 5), and a Motion for Expedited Briefing (ECF
No. 6). On May 29, 2018, the court granted the Motion for Expedited Briefing. (ECF No. 8.) On
June 4, 2018, Defendants filed a Response in Opposition to Plaintiff’s Motion for Preliminary
Injunction (ECF No. 19), and on June 5, 2018, the court held a hearing on the Motion for
Preliminary Injunction (ECF No. 20). On June 6, 2018, the State filed a Reply in Support of the
Motion for Preliminary Injunction (ECF No. 21), and on June 7, 2018, the court issued the
Injunction. (ECF No. 23.)
On June 15, Defendants filed this Motion to Stay the Preliminary Injunction (ECF No. 27)
along with a Notice of Appeal (ECF No. 26). 2

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The State brought suit alleging (1) Defendants had not consulted with the Governor prior to
notifying Congress of its May 10 decisions to terminate the MOX Facility and pursue the Dilute
and Dispose method of disposition for defense plutonium stored at the Savannah River Site
originally scheduled to be disposed through the MOX Facility; (2) Defendants failed to conduct
the analysis required by the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq.
(“NEPA”), prior to making its May 10 decisions; and (3) the commitment and certification sent to
Congress constituted arbitrary and capricious action in violation of the Administrative Procedure
Act, 5 U.S.C. §§ 551 et seq. (“APA”). (ECF No. 1.) In its Amended Complaint, filed on June 9,
2018, the State removed the first cause of action regarding Defendants’ failure to consult with the
Governor. (ECF No. 25.)
The filing of an appeal does not divest this court of jurisdiction for a motion to stay a preliminary
injunction. See Fed. R. Civ. P. 62(c) (allowing a court to stay an order “[w]hile an appeal is
pending”); see also 11 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, FEDERAL
PRACTICE AND PROCEDURE § 2904 (3rd ed. 2018).

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II.

LEGAL STANDARD

Under Rule 62(c), a court may “suspend, modify, restore, or grant” an injunction while an
interlocutory appeal regarding the injunction is pending. Fed. R. Civ. P. 62(c). When considering
whether to stay an order pending appeal under Rule 62(c), courts consider “(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 injured 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.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
III.

ANALYSIS

Defendants assert that the Injunction should be stayed for two reasons. First, Defendants
posit that their actions following the issuance of the Injunction make the Injunction unnecessary
and, in essence, moot. (ECF No. 27 at 5.) The Injunction vacated Defendants’ May 10 decisions
to terminate the MOX Facility and pursue the Dilute and Dispose method of disposition, vacated
the May 14 Partial Stop Work Order, and enjoined Defendants from continuing to pursue the
termination of the MOX Facility. (ECF No. 23 at 35-36.) After the Injunction was issued,
Defendants informed the MOX Facility contractor, CB&I AREVA MOX Services, LLC, that the
May 14, 2018 Partial Stop Work Order had been rescinded. (ECF No. 27-1.) Additionally,
Defendants instructed DOE personnel not to take any action to implement the Dilute and Dispose
method of disposition for the 34 metric tons of defense plutonium designated for processing at the
MOX Facility. (ECF No. 27 at 4.) Defendants’ rescission of the Partial Stop Work Order was a
direct response to the Injunction. (ECF No. 27-1) (“Pursuant to the June 7, 2018 Preliminary
Injunction Order issued by the United States District Court for the District of South Carolina Aiken
Division, the May 14, 2018 NNSA Partial Stop Work Order is cancelled . . . .”). Similarly, DOE

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and NNSA personnel were directed to not pursue the Dilute and Dispose method of disposition in
order to comply with the Injunction (ECF No. 27 at 4). When an injunction both nullifies previous
actions and enjoins future actions, compliance with the injunction’s retroactive portions does not
make the injunction as a whole, and specifically its prospective portions, moot. See Polaris Pool
Sys., Inc. v. Great American Waterfall Co., 2006 WL 289118, at *4 (M.D. Fla. February 7, 2006)
(“[M]odification of an injunction is proper only when there has been a change of circumstances
between entry of the injunction and the filing of the motion that would render the continuance of
the injunction in its original form inequitable.”) (quoting Favia v. Ind. Univ. of Pa., 7 F.3d 332,
337-38 (3rd Cir. 1993)). Defendants’ actions do not render the continuance of the Injunction in its
original form inequitable. Therefore, Defendants’ actions following the issuance of the Injunction
do not support staying the Injunction.
Secondly, Defendants submit the factors described in Hilton weigh in favor of staying the
Injunction. (ECF No. 27 at 5-10.) The Hilton factors are functionally identical to the factors a court
considers when deciding to grant a preliminary injunction. Compare Hilton, 481 U.S. at 776 with
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (“A plaintiff seeking a preliminary
injunction must establish that he is likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor,
and that an injunction is in the public interest.”). Defendants acknowledge that their arguments in
favor of the stay mirror their arguments against the issuance of the Injunction. (ECF No. 27 at 5)
(“For the reasons stated in their brief in opposition to plaintiff’s motion for a preliminary
injunction, Defendants respectfully assert that they have satisfied [the Hilton] factors and that a
stay is appropriate.”). The court addressed these arguments in the Injunction and stands by its

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previous analysis. 3 Therefore, the court finds that the Hilton factors weigh against staying the
injunction.
IV.

CONCLUSION

For the reasons discussed above, the court DENIES Defendants’ Motion for Stay of the
Preliminary Injunction Pending Appeal (ECF No. 27).
IT IS SO ORDERED.

United States District Judge
June 26, 2018
Columbia, South Carolina

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Defendants assert “[t]he [I]njunction could arguably be read to prohibit DOE from internally
discussing, or taking any steps to perform the appropriate NEPA analysis for, using dilute and
dispose for removing the defense plutonium designated for MOX processing from South
Carolina.” (ECF No. 27 at 7.) The Injunction should not be read as Defendants suggest. The
Injunction does not prevent Defendants from conducting NEPA environmental analysis of the
Dilute and Dispose method of disposition for plutonium designated for processing at the MOX
Facility. Instead, the Injunction prevents Defendants from continuing their current plan to
terminate the MOX Facility.
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