United States District Court, D. South Carolina, Aiken Division
ORDER AND OPINION
MICHALLE GHILL UNITED STATES DISTRICT JUDGE
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 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).
25, 2018, the State concurrently filed a complaint against
Defendants (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.)
15, Defendants filed this Motion to Stay the Preliminary
Injunction (ECF No. 27) along with a Notice of Appeal (ECF
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).
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 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.
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 previous
analysis. Therefore, the court finds that the
Hilton factors weigh against staying the injunction.
reasons discussed above, the court DENIES
Defendants' Motion for Stay of the Preliminary Injunction
Pending Appeal (ECF No. 27).
States District Judge June 26, 2018 ...