United States District Court, D. Colorado
ORDER ON MOTION TO STAY JUDGMENT
Brooke Jackson, United States District Judge.
Judgment was entered in this case on September 19, 2018, ECF
No. 89. I held that the U.S. Department of State
(“Department”) violated the Administrative
Procedure Act, 5 U.S.C. § 706(2)(A) and (C) and enjoined
the Department from relying upon its binary-only gender
marker policy to withhold the requested passport from
Plaintiff Dana Zzymm (“Dana”). Defendants filed a
Notice of Appeal on November 19, 2018, ECF No. 93, and now
move to stay this judgment pending appeal, ECF No. 98.
Plaintiff filed their response in opposition to this motion,
ECF No. 101, and this motion became ripe with the filing of
defendants' reply, ECF No. 105. For the reasons set forth
below, this motion is denied.
STANDARD OF REVIEW
Courts have the authority to stay an injunction while an
appeal is pending from the final judgment that granted the
injunction. Fed.R.Civ.P. 62(c). However, “[a] stay is
an intrusion into the ordinary process of administration of
judicial review, and accordingly is not a matter of right,
even if irreparable injury might otherwise result to the
appellant.” Nken v. Holder, 556 U.S. 418, 427
(2009) (internal quotation marks and citations omitted). It
is within this Court's discretion to stay an injunction
and the Department “bears the burden of showing that
the circumstances justify an exercise of that
discretion.” Id. at 434.
Supreme Court has identified four factors that guide the
issuance of a stay pending appeal: “(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. (quoting Hilton v.
Braunskill, 481 U.S. 770, 776 (1987)).
Tenth Circuit has held that “where the moving party has
established that the three ‘harm' factors tip
decidedly in its favor, the ‘probability of
success' requirement is somewhat relaxed.”
F.T.C. v. Mainstream Mktg. Servs., Inc., 345 F.3d
850, 852 (10th Cir. 2003). In these circumstances, the moving
party need only to show that it “has raised questions
going to the merits so serious, substantial, difficult, and
doubtful as to make the issue ripe for litigation and
deserving of more deliberate investigation.”
Id. at 853. However, as I will explain, I do not
conclude that the defendants demonstrate that the harm
factors weigh so decidedly in their favor to justify a
relaxed review of the probability of success factor.
Therefore, the standard for factor two is whether defendants
show “a substantial likelihood of success on the merits
of its appeal.” Id.
The Harm Factors.
Department argues that compliance with the Court's
injunction during pendency of the appeal would irreparably
harm defendants and the public. Where, as here, the
government's “asserted injury is exclusively one
involving the public interest, ” the second and fourth
prongs of the stay analysis overlap. Mainstream Mktg.
Servs., Inc., 345 F.3d at 852. As support, the
defendants provide the declarations of Carl C. Risch,
Assistant Secretary of State for Consular Affairs, ECF No.
98-1, and Kenneth J. Reynolds, Director of the Office of
Consular Systems and Technology, ECF No. 98-2. In his
declaration, Mr. Reynolds discusses the process of producing
a valid U.S. electronic passport. An electronic passport or
“ePassport” is the standard U.S. passport issued
by the Department and contains an electronic chip containing
secure digitized image and biographic data about the bearer.
ECF No. 98-2 at ¶3. Mr. Reynolds describes the numerous
information technology systems involved in producing
ePassports that would need to be modified to ensure that an
additional sex marker would be recognized and supported. He
estimates that the changes to existing software systems to
create a fully integrated ePassport would take approximately
24 months and cost $11 million. Id. at ¶1.
Reynolds also states that the Bureau of Consular Affairs
(“CA”) has considered the possibility of printing
a single ePassport for Dana with an “X” sex
marker as a “one-off, ” outside of the normal
processes. Id. at ¶7. Instead of updating all
software systems to create a fully integrated ePassport, he
can incorporate modifications to certain systems to change
the sex marker in the issuing system's database to an
“X.” Producing a one-off passport would take
approximately four weeks. Id. at ¶7. Mr.
Reynolds describes some drawbacks to the one-off passport:
mismatches with Department of Homeland Security (DHS) systems
could lead DHS officials at ports of entry to require
additional screening for Dana, id. at ¶9, and a
one-off passport would take longer to replace if lost or
stolen, id. at ¶10. Mr. Reynolds describes
another option as well: producing a type of passport known as
an Emergency Photo-Digitized Passport (EPDP). Id. at
17. Unlike an ePassport, an EDPD does not have an electronic
chip. It can only be printed at overseas posts, and would
need to be renewed more frequently than an ePassport,
typically every year. Id. at ¶16. This type of
passport would also take approximately four weeks to produce.
Id. at ¶18. Issuing a one-off EDPD passport has
the same drawbacks as the ePassport: delays in re-issuance if
lost or stolen and not matching data in the record systems
potentially causing Dana additional screening. Id.
Risch, in his declaration, describes harms that he perceives
the issuance of a one-off passport for Dana would cause. He
states that the issuance of a single passport that does not
conform to publicized U.S. standards would undermine the U.S.
passport's status as the “gold standard”
identity and travel document. ECF No. 98-1 at 7. He states
that because the Department has not announced any intention
to produce passports with anything other than “F”
or “M” as sex markers, that the bearer of the
one-off passport, Dana, would be subjected to additional
vetting, inconvenience, delay, and possible denial of entry.
Id. He further states that the issuance of a one-off
passport to Dana could make foreign officials more likely to
accept similarly nonconforming passports issued by other
countries in the future, undermining the reliability of the
system of international travel. ECF No. 98-2 at 5.
Department argues the time and cost required to fully
integrate changes to their system is irreparable injury. It
argues further that pursuing an option that does not require
investment in their software systems and takes four weeks,
producing a “one-off” passport for Dana, would
cause irreparable harm to “the U.S. passport's
status as the gold standard identity and travel
document.” ECF No. 98 at 9-10.
argues that if the Department chooses to pursue the first
option of updating their software systems, economic loss does
not, in and of itself, constitute irreparable harm. See
Port City Props. V. Union Pac. R.R. Co., 518 F.3d 1186,
1190 (10th Cir. 2008). Citing law from other circuits,
plaintiff argues that “[t]o successfully shoehorn
potential economic loss into a showing of irreparable harm, a
[movant] must establish that the economic harm is so severe
as to ‘cause extreme hardship to the business' or
threaten its very existence.” Coal for Common Sense
in Gov't Procurement v. United States, 576 F.Supp.2d
162, 168 (D.D.C. 2008). Defendants point out that these cases
refer to businesses, and not federal agencies. However, the
reasoning in these cases is applicable to any entity. That
is, that economic loss is not irreparable harm unless the
movant can show that such an economic loss would cause it
harm as an entity, for example by impairing its ability to
perform its core functions.
asserts that an $11 million expense would not amount to
irreparable harm as that cost represents only .03 percent of
DOS's annual budget. The Department points out that
plaintiff identifies no authority for comparing the cost of
implementing the “X” sex marker to the entire DOS
budget. Instead, the Department offers that the estimated
cost of implementing the “X” marker changes would
be 4.7 percent of the budget allocated to CA, Office of
Consular Systems and Technology for systems development,
operations and maintenance relating to the Passport function
for FY2019. ECF No. 105 at 2. It is the Department's
burden to show that it would suffer an irreparable injury.
The Department does not argue that an expenditure that
amounts to 4.7 percent of the budget allocated to consular
systems and technology for systems development, operations
and maintenance for this year would impair its ability to