United States District Court, E.D. Wisconsin
ASHTON WHITAKER, By his mother and next friend, Melissa Whitaker, Plaintiff,
KENOSHA UNIFIED SCHOOL DISTRICT NO. 1 BOARD OF EDUCATION and SUE SAVAGLIO-JARVIS, Defendants.
ORDER DENYING DEFENDANTS' CIVIL L.R. 7(H)
EXPEDITED, NON-DISPOSITIVE MOTION TO STAY PRELIMINARY
INJUNCTION (DKT. NO. 33) PENDING APPEAL (DKT. NO.
PAMELA PEPPER, United States District Judge
plaintiff filed his complaint on July 19, 2016, Dkt. No. 1,
and less than a month later, filed a motion for preliminary
injunction, Dkt. No. 10. A day after the plaintiff filed the
motion for preliminary injunction, the defendants filed a
motion to dismiss the complaint. Dkt. No. 15. A few days
later, they filed a brief in opposition to the motion for
preliminary injunction. Dkt. No. 17.
September 6, 2016, the court heard oral argument on the
motion to dismiss. Dkt. No. 26. On September 19, 2016, the
court issued an oral ruling denying the defendants'
motion to dismiss. Dkt. No. 28. The court scheduled a hearing
on the motion for preliminary injunction for the following
day, September 20, 2016. Id. at 9.
September 20, 2016, the parties presented their oral
arguments on the motion for preliminary injunction. Dkt. No.
31. In considering the question of whether the plaintiffs had
a likelihood of success on the merits, the court relied in
good part on its decision from the previous day denying the
motion to dismiss. At the conclusion of the hearing, the
court granted in part the plaintiff's motion for a
preliminary injunction, and enjoined the defendants from
prohibiting the plaintiff from using the boys' restrooms
at his high school; from taking punitive action against the
plaintiff for using the boys' restrooms; and from taking
any action to monitor his restroom usage. Dkt. No. 31 at 1.
Counsel for the defendants asked the court to stay the
injunction until October 1, 2016, to allow the defendants
time to appeal. Id. The court declined. Id.
at 2. The defendants also asked the court to require the
plaintiff to post a bond; the court took that request under
September 22, 2016, the court issued its written order
granting in part the motion for preliminary injunction. Dkt.
No. 33. In particular, the court weighed the balance of
harms, and concluded that the harms suffered by the plaintiff
if the court did not grant the injunctive relief outweighed
any potential harms suffered by the defendant if the court
were to impose the injunction. Id. at 13-15. The
court also found that the issuance of the injunction would
not negatively impact the public interest. Id. at
15. Finally, the court declined to require the plaintiff to
post a bond. Id. at 15-17.
defendants again have asked the court to stay the preliminary
injunction. Dkt. No. 44. The defendants point out that they
have appealed the court's decision to the Seventh Circuit
(both appealed as of right regarding the order granting the
motion for preliminary injunction, and sought interlocutory
appeal regarding the court's denial of the motion to
dismiss the complaint). Id. at 2. They argue, as
they did in their motion to dismiss, that the Seventh
Circuit's decision on Ulane v. Eastern Airlines,
Inc., 742 F.2d 1081) (7th Circuit) mandates a ruling in
their favor on the Title IX issue (despite conceding that the
court has not decided the precise issue in question in this
case). Id. at 1-2. They argue that they will suffer
irreparable harm from the injunction, because the injunction
“threatens the constitutionally protected privacy
interest of the approximately 22, 000 students in the school
district.” Id. at 2-3.
argue that the plaintiff will not be harmed by staying the
injunction, because a stay would maintain the status
quo and would not worsen the plaintiff's health.
Id. at 3. Finally, they argue that the public
interest would be served by a stay of the injunction, because
it will prevent the school district's students and
parents from being “subjected to an injunction that
perpetuates a policy that the federal government is unable to
enforce, ” citing State of Texas v. United
States, Case No. 16-cv-54, 2016 WL 4426495 (N.D. Tex.,
August 21, 2016).
defendants state in their motion, the factors a movant must
satisfy to obtain a stay pending appeal are similar to the
factors a movant must satisfy to obtain injunction relief.
Hinrichs v. Bosma, 440 F.3d 393, 396 (7th Cir. 2006)
(citing Hilton v. Braunskill, 481 U.S. 770, 776
(1987)). The moving party must demonstrate that “1) it
has a reasonable likelihood of success on the merits; 2) no
adequate remedy at law exists; 3) it will suffer irreparable
harm if it is denied; 4) the irreparable harm the party will
suffer without relief is greater than the harm the opposing
party will suffer if the stay is granted; and 5) the stay
will be in the public interest.” Id. (citing
Kiel v. City of Kenosha, 236 F.3d 814, 815-16 (7th
argument which the defendants raise in their motion for stay
pending appeal was raised in their objection to the motion
for preliminary injunction, and the parties argued every one
of those issues at the September 20, 2016 hearing. The court
found in favor of the plaintiff, and against the defendants,
on each factor. The defendants give no explanation for why
the court should find in their favor now, when eight days
prior to their filing this motion to stay, the court found
against them on exactly the same issues they raise here.
court DENIES the defendants' motion Civil L.R. 7(h)
Expedited, Non-Dispositive Motion to Stay Preliminary
Injunction. Dkt. No. 44.
 There is a bit of a procedural morass
surrounding that decision. Counsel for the defendants
informed the court at the end of the hearing that he would be
submitting a proposed order, denying his motion to dismiss
but containing the necessary findings for certification of an
interlocutory appeal. He did not make any argument in support
of that proposal; the court did not elicit any, nor did it
ask for the plaintiff's position. The court entered the
order, with the interlocutory appeal certification language,
on September 21. Dkt. No. 29. The next day, the plaintiff
filed a motion asking the court to reconsider including the
interlocutory appeal certification language. Dkt. No. 30. On
September 23, 2016, before the court ruled on that motion,
the defendants filed a notice of appeal with the Seventh
Circuit, appealing both the order denying the motion to
dismiss and the order granting the preliminary injunction (an
order the court had issued on September 22, 2016, Dkt. No.
33). Dkt. No. 34. On September 25, 2016, the court issued an
order granting the plaintiff's motion to reconsider, Dkt.
No. 36, and entered an amended order denying the motion to
dismiss but removing the interlocutory appeal certification
language, Dkt. No. 35. The next day, the Seventh Circuit
ordered the plaintiff to respond to the defendants'
request for interlocutory appeal by October 11, 2016.
 The plaintiff's complaint requests
other relief: it asks the court to prohibit the defendants
from referring to the plaintiff by his birth name, and from
using female pronouns to identify him; to require the school
to allow him to room with other boys on school trips; to
prohibit the school from requiring the plaintiff to wear
identifying markers, such as a colored wristband; and other
relief. The court did not grant injunctive ...