United States District Court, D. Idaho
ORDER DENYING DEFENDANTS' EXPEDITED MOTION TO
Lynn Winmill U.S. District Court Judge
before the Court is Defendants' expedited motion to stay
this Court's order of October 24, 2019, pending appeal to
the United States Court of Appeals for the Ninth Circuit.
(Expedited Motion to Stay, Dkt. 228; Notice of Appeal, Dkt.
227.) The Court's order requires Defendants to provide
all pre-surgical treatments and related corollary
appointments or consultations necessary for the Plaintiff to
undergo gender confirmation surgery. (See Dkt. 225
careful consideration of the motion, the parties'
arguments, the procedural and factual record, and relevant
law, the Court will deny the expedited motion to stay.
However, the Court will defer setting a deadline for
Plaintiff to receive her first hair removal treatment to
allow the Court to hold a limited hearing for purposes
December 13, 2018, the Court issued a decision concluding
that by refusing to provide Plaintiff gender confirmation
surgery to treat her severe gender dysphoria, Defendants
violated the Eighth Amendment to the Constitution of the
United States of America. The Court granted Plaintiff's
motion for injunctive relief, and ordered Defendants to
“take all actions reasonably necessary to provide Ms.
Edmo gender confirmation surgery as promptly as possible and
no later than six months from the date” of the order.
(Dkt. 149 at 45 (“2018 Order”). Defendants
appealed the decision, and moved the Court to stay the
injunction pending resolution of the appeal. (Dkt. 154; Dkt
156.) Although the Court denied the motion to stay, a Ninth
Circuit motions panel granted a stay pending appeal. (Dkt.
182.) Later, Plaintiff filed a motion to modify the appellate
stay to exempt a previously scheduled presurgical appointment
with the surgeon chosen by Defendants to perform the gender
confirmation surgery, Dr. Geoffrey Stiller. The panel granted
the motion, and the presurgical appointment took place on
April 12, 2019. (Dkt. 187.)
Stiller's medical assessment record from the presurgical
appointment included notes that are pertinent to
Defendants' motion. (Exhibit A to Defendants'
Memorandum in Support of the Expedited Motion to Stay, Dkt.
228-2 at 12.) Dr. Stiller noted that he discussed the pros
and cons of two gender confirmation surgery techniques-penile
inversion vaginoplasty and colovaginoplasty. Id. The
notes include that Dr. Stiller discussed with Plaintiff the
fact that hair removal was “needed” for the
penile inversion technique. Id. Dr. Stiller noted
also that, should Plaintiff proceed with the colovaginoplasty
technique, “the first stage can be completed with hair
removal” followed by the surgery six (6) months later.
August 23, 2019, the Ninth Circuit affirmed the 2018 Order,
holding Defendants violated Plaintiff's Eighth Amendment
right to adequate and necessary medical treatment of her
severe gender dysphoria by denying gender confirmation
surgery. (Dkt. 209.) Defendants filed a petition for
rehearing en banc, which as of the date of
this order is pending.
Plaintiff filed a motion requesting the Ninth Circuit
partially lift its stay of the 2018 Order to enable her to
receive all necessary presurgical treatments. In support of
the motion, Plaintiff submitted a letter from Dr. Stiller
wherein he provided an estimation that completion of all
presurgical treatments and prerequisites would take at least
six months. The Ninth Circuit granted Plaintiff's motion
for partial lifting of the stay. (Dkt. 220.) The court found
that, as the proponents of the stay, Defendants failed to
show irreparable harm was probable “with respect to the
limited nature of Plaintiff's request.”
Id. at 2. The court found also that Defendants
failed to meet their burden to show a substantial case on the
merits or that the balance of the hardships tipped sharply in
their favor. Id. at 2. Accordingly, the Ninth
Circuit partially lifted the appellate stay of the 2018
injunction “so that Plaintiff may receive all
presurgical treatments and related corollary appointments or
consultations necessary for gender confirmation
light of the partial lifting, the Court held a status
conference with counsel for the parties. (Dkt. 222.) During
the conference, counsel for Defendant Corizon suggested, for
the first time, that his client was confused or uncertain
regarding the specific presurgical requirements and the type
of gender confirmation surgery required by the 2018 Order and
the Ninth Circuit's August 2019 decision. Given
Defendants' contentions, the Court ordered Plaintiff to
file a submission detailing the presurgical requirements
indicated by the performing surgeon, Dr. Stiller.
filed the submission on October 22, 2019. (Dkt. 224.)
According to the submission, three presurgical requirements
remain outstanding: (1) a physician referral letter, (2)
laser treatment or electrolysis of the surgical area, and (3)
documentation of approval for payment. Id. With the
presurgical requirements clarified, the Court issued the
Presurgical Order, which requires Defendants to take steps to
ensure the three remaining presurgical requirements are
completed in a timely manner. To this end, the Court required
Defendants to schedule and ensure that Plaintiff's first
hair removal treatment take place on or before November 8,
Court held a second status conference with Counsel for the
parties on October 30, 2019. (Dkt. 230.) The purpose of the
status conference was to obtain an update from Defendants on
their progress in complying with the Presurgical Order.
Counsel for Defendants noted Plaintiff's first hair
removal treatment had been scheduled for November 7, 2019.
Defendants filed the present motion and notice of appeal on
October 31, 2019. (Dkt. 227, 228.) Plaintiff filed a response
to the motion November 5, 2019. (Dkt. 235.) The following
day, the Court vacated the November 8, 2019 hair removal
treatment deadline to allow careful and full consideration of
Defendants' expedited motion to stay. (Dkt. 239.) The
Court will now discuss the merits of the motion.
Rule of Civil Procedure 62(d) provides that, when “an
appeal is pending from an interlocutory order or final
judgment that grants … an injunction, ” a
“court may suspend, modify, or restore an injunction on
…. terms that secure the opposing party's
rights.” Pertinent to the present motion, a court may
stay, i.e. “hold an order in abeyance pending [its]
review.” Nken v. Holder, 556 U.S. 418, 427
traditional standard used to determine whether a stay of an
order should issue pending appeal of the order requires a
court to consider four factors: “(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.” Id. (internal citations
omitted). The party requesting the stay bears the burden of
showing it is warranted under the circumstances. Id.
at 433-34. The first two factors are considered “the
most critical” to a court's determination.
Id. at 434. Ultimately, however, a stay is “an
exercise of judicial discretion” where the propriety
“of its issue is dependent upon the circumstances of
the particular case.” Id.
recent procedural history of this case bears on the
Court's analysis of the propriety of a stay of the
Presurgical Order. Defendants' motion comes on the heels
of a decision from the Ninth Circuit to partially lift the
appellate court stay of the 2018 Order. In issuing the order,
the Ninth Circuit found “Defendants, as the proponents
of the stay, ” did not show “that irreparable
harm is probable with respect to the limited nature of
Plaintiff's request” and also did not show
“that they have both a substantial case on the merits
and the balance of hardships tips sharply in their
favor.” (Dkt. 220 at 2 (citing Leiva-Perez v.
Holder, 640 F.3d 962, 970 (9th Cir. 2011) (per curiam)
(internal citations omitted)).
now ask this Court to reconsider the factors and arguments
fully considered by the Ninth Circuit. Furthermore,
Defendants' motion involves, as its subject, the same
core issue presented to the circuit-the performance of
presurgical treatments pending conclusion of appellate
review. Defendants' motion viewed in the best light
invites the Court to engage in a circular exercise; in the
worst light it suggests an attempt to relitigate decided
issues and to delay provision of the presurgical treatments
ordered by the Ninth Circuit.
gravely concerned that the Defendants' filings are for
the purpose of delay and do not reflect any real
misunderstanding of the Court's prior decision, the Court
will not preclude the Defendants from presenting, on an
expedited basis, their belated argument that other gender
confirmation surgery techniques would cure the constitutional
violation at issue in this case. The Court will discuss that
issue in the context of the factors it must consider when
deciding whether to issue a stay pending appeal.
Defendants have not shown a strong likelihood of ...