DOJ Renews Request for SCOTUS to Stay Social Media Injunction ‘in Its Entirety’
The “intended effect” is “unclear” of the 5th Circuit U.S. Court of Appeals’ surprise order Tuesday rescinding its previous day’s grant of panel rehearing to the Republican attorneys general of Louisiana and Missouri for widening the social-media injunction’s scope against federal officials (see 2309260056), said DOJ. It filed a supplemental memorandum Tuesday (docket 23A243) in support of its emergency application at the U.S. Supreme Court for a full stay of the injunction, pending resolution of SCOTUS review.
The 5th Circuit order also recalled its Sept. 11 mandate, which had cleared the government to apply to SCOTUS for a full stay of the injunction. The order gave the government until noon Thursday, time zone unspecified, to respond to the plaintiffs’ petition for rehearing. The U.S. District Court for the Western Louisiana’s July 4 injunction will remain stayed pending resolution of the AGs’ petition for panel rehearing, said the order.
To the extent that the 5th Circuit order “contemplated further proceedings” culminating in the issuance of a modified opinion and judgment, it didn’t specify “what form those proceedings would take or when a modified judgment would issue,” said the government’s supplemental memorandum. It also didn’t “withdraw its original judgment or reinstate its stay of the injunction in the meantime,” it said.
To the extent the 5th Circuit “instead intended to summarily grant the relief” the GOP AG respondents requested in their rehearing petition, “it neither explained why that relief was warranted nor specified precisely what form the modified injunction would take,” said the government’s supplemental memorandum. “That would be no small issue,” it said. The rehearing petition “sought to extend the injunction to hundreds of thousands of additional government employees associated with two additional groups of defendants,” it said.
If the 5th Circuit’s order purports to extend injunctive relief beyond the scope set forth in its original Sept. 8 decision, “a stay of that additional relief is warranted for the reasons explained” in the government’s Sept. 14 SCOTUS application for an emergency stay, said the government’s memorandum. “Any additional relief would necessarily rest on the same novel and erroneous understanding of the state-action doctrine, and would also suffer from the same Article III and equitable flaws as the portion of the injunction that the court originally affirmed,” it said.
A stay of any expanded injunction “would also be warranted because of the procedural impropriety of substantially expanding the injunction after issuance of the mandate and without giving the government an opportunity to be heard,” said the government’s supplemental memorandum. Such a stay “is encompassed within the relief requested in the government’s stay application,” plus the administrative stay already issued by Justice Samuel Alito, the Supreme Court’s circuit judge for the 5th Circuit, it said. Before Tuesday’s 5th Circuit order, Alito’s stay was to have expired at 11:59 p.m. EDT Wednesday.
In light of the “unreasoned nature” of the 5th Circuit’s order, and the uncertainty about that order’s intended effect, the government won’t “develop at length” its additional arguments explaining why any expansion of the injunction “would be unwarranted and improper,” said the supplemental memorandum. The government is prepared to submit further briefing on those issues if SCOTUS requests it, DOJ said.
The government previously floated the option that SCOTUS could “construe” the government’s stay application as a cert petition and immediately grant cert along with a stay, said the supplemental memorandum. That course remains available, it said.
The 5th Circuit’s “unexplained grant” of panel rehearing doesn’t purport to modify its prior Sept. 8 judgment, said the supplemental memorandum. The 5th Circuit “lacked authority to modify its judgment without recalling its mandate,” and the issues decided in that judgment “continue to warrant” SCOTUS review, it said. Whether or not SCOTUS grants cert immediately, the government submits that the “irregularity of and additional uncertainty caused” by the 5th Circuit’s Tuesday order “provide powerful additional reasons to stay the district court’s preliminary injunction in its entirety,” DOJ said.