Motion For Temporary
- Date
- 2021-09-09
Summary
The resistance of defendants Governor Kim Reynolds and Ann Lebo to the plaintiffs' motion for a temporary restraining order in The Arc of Iowa et al. v. Kim Reynolds, in her official capacity as Governor of Iowa, et al., Case No. 4:21-CV-00264-RP-SBJ, in the U.S. District Court for the Southern District of Iowa, filed September 9, 2021 as Document 21. The State argues that Iowa Code § 280.31 does not bar facial coverings required by other law, so an order is unnecessary. It argues that enjoining the statute would not redress the claimed harms because school boards would still decide whether to require masks. It also argues that the plaintiffs delayed suing on a statute in effect since May 20, 2021 and that a temporary restraining order would upset the status quo. The brief asks the court to deny the motion and set preliminary injunction briefing.
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Case 4:21-cv-00264-RP-SBJ Document 21 Filed 09/09/21 Page 1 of 8
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION
THE ARC OF IOWA et al., Case No. 4:21-CV-00264-RP-SBJ
Plaintiffs,
DEFENDANTS GOVERNOR
v. KIM REYNOLDS AND ANN LEBO’S
RESISTANCE TO
KIM REYNOLDS, in her official MOTION FOR TEMPORARY
capacity as Governor of Iowa, et al. RESTRAINING ORDER
Defendants.
COMES NOW Defendants Governor Kim Reynolds and Ann Lebo (collectively,
“the State”) and submit this Resistance to Motion for Temporary Restraining Order.
TABLE OF CONTENTS
INTRODUCTION .......................................................................................................... 2
LEGAL STANDARD FOR TEMPORARY RESTRAINING ORDER .......................... 3
ARGUMENT .................................................................................................................. 4
I. Plaintiffs’ request for a temporary restraining order enjoining
enforcement of section 280.31 should be denied because it’s
unnecessary—section 280.31 doesn’t prevent schools from complying
with federal law. ............................................................................................ 4
II. A temporary restraining order enjoining enforcement of section 280.31
wouldn’t redress Plaintiffs’ alleged harms because it wouldn’t provide a
universal mask mandate in the schools........................................................ 5
III. A temporary restraining order enjoining a statute that has been in effect
for nearly four months would upset the status quo and cause unnecessary
confusion and conflict until the merits of the preliminary injunction and
validity of this lawsuit can be considered. .................................................... 6
CONCLUSION............................................................................................................... 8
Case 4:21-cv-00264-RP-SBJ Document 21 Filed 09/09/21 Page 2 of 8
INTRODUCTION
Nearly four months ago, the Legislature passed, and the Governor signed,
legislation enacting section 280.31 of the Iowa Code into law. See Act of May 20, 2021
(H.F. 847), ch. 139, 2021 Iowa Act § 28 (to be codified at Iowa Code § 280.31). That
statute became effective immediately, see id. § 31, and provides:
The board of directors of a school district, the superintendent or chief
administering officer of a school or school district, and the authorities in
charge of each accredited nonpublic school shall not adopt, enforce, or
implement a policy that requires its employees, students, or members of
the public to wear a facial covering for any purpose while on the school
district’s or accredited nonpublic school’s property unless the facial
covering is necessary for a specific extracurricular or instructional
purpose, or is required by section 280.10 or 280.11 or any other provision
of law.
Id. § 28.
Plaintiffs now sue alleging that section 280.31 violates title II of the Americans
with Disabilities Act (“ADA”), section 504 of the Rehabilitation Act, and the American
Rescue Plan Act of 2021 (“ARPA”). Compl., Doc. 1 ¶ 76–102. And they seek a
temporary restraining order “enjoining Defendants from enforcing HF 847 and
thereby violating the ADA, Section 504 of the Rehabilitation Act, and ARPA.”
Complaint, Doc. 1, at 37 ¶ 4.1 But this extraordinary remedy of a temporary
restraining order is unnecessary and inappropriate. It should be denied.
Instead, the Court should provide the parties a reasonable time to fully brief
the merits of a preliminary injunction, including the plaintiffs’ likelihood of success
1 Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction does
not provide any separate statement of the precise temporary restraining order
requested. See Mtn. for TRO, Doc. 3, at 1.
-2-
Case 4:21-cv-00264-RP-SBJ Document 21 Filed 09/09/21 Page 3 of 8
on their novel and complex legal claims, their potential lack of Article III standing,
and their failure to exhaust through proper administrative channels. After that
adversarial briefing and a hearing on the preliminary injunction, the Court will be in
a better position to rule on the important and weighty issues raised by Plaintiffs.2
They have not shown that a temporary restraining order is warranted to maintain
the status quo in the meantime.
LEGAL STANDARD FOR TEMPORARY RESTRAINING ORDER
“Preliminary injunctive relief is an extraordinary remedy, made more so by the
emergency nature of a temporary restraining order.” Adventist Health Sys./Sunbelt,
Inc. v. United States Dep't of Health & Hum. Servs., No. 3:20-CV-00101, 2021 WL
973455, at *6 (S.D. Iowa Mar. 12, 2021); see also Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 24 (2008) (“A preliminary injunction is an extraordinary remedy never
awarded as of right.”). The power to grant a preliminary injunction has been called
“an awesome power” that “necessarily requires the Court to analyze the record
carefully to determine whether Plaintiff has shown that it will be irreparably harmed
absent the issuance of the requested relief.” Mediacom Communications Corp. v.
Sinclair Broad. Group, Inc., 460 F. Supp. 2d 1012, 1017 (S.D. Iowa 2006).
Courts in the Eighth Circuit apply a four-part test—generally called the
Dataphase factors—to determine whether preliminary injunctive relief is
appropriate. Sanborn Mfg. Co., Inc. v. Campbell Hausfeld/Scott Fetzer Co., 997 F.2d
2 The State also intends to file a Motion to Dismiss that could resolve all claims,
rendering Plaintiffs’ motion for a preliminary injunction moot. If the Court should
wish to consider both motions simultaneously, the State would welcome a reasonable
briefing schedule that makes such consideration possible.
-3-
Case 4:21-cv-00264-RP-SBJ Document 21 Filed 09/09/21 Page 4 of 8
484, 485–86 (8th Cir. 1993) (citing Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d
109, 114 (1981) (en banc)). The four Dataphase factors are: “(1) the probability of
success on the merits; (2) the threat of irreparable harm to the movant; (3) the
balance between this harm and the injury that granting the injunction will inflict on
other interested parties; and (4) whether the issuance of an injunction is in the public
interest.” Id. “No single factor in itself is dispositive; in each case all of the factors
must be considered to determine whether on balance they weigh towards granting
the injunction.” Baker Elec. Co-op., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir. 1994).
The same standard is applied when considering a temporary restraining order.
But analysis of threatened harm focuses on what would be suffered before a
preliminary injunction could be considered. See Ohlensehlen v. Univ. of Iowa, No.
3:20-CV-00080, 2020 WL 9074889, at *1 (S.D. Iowa Dec. 4, 2020).
ARGUMENT
I. Plaintiffs’ request for a temporary restraining order enjoining
enforcement of section 280.31 should be denied because it’s
unnecessary—section 280.31 doesn’t prevent schools from complying
with federal law.
Section 280.31 doesn’t prohibit any actions of a school where “the facial
covering . . . is required by . . . any other provision of law.” Act of May 20, 2021 (H.F.
847), ch. 139, 2021 Iowa Act § 28 (to be codified at Iowa Code § 280.31). So if Plaintiffs
are correct that federal law requires some facial coverings in schools, section 280.31
doesn’t prohibit it. No injunction of the statute’s enforcement is required. A school
already has it within its power to comply with any requirement of federal law.
-4-
Case 4:21-cv-00264-RP-SBJ Document 21 Filed 09/09/21 Page 5 of 8
To be sure, the State disputes that the ADA, the Rehabilitation Act, or ARPA
impose any federal requirement that a universal mask mandate be imposed in all
Iowa schools—or in the schools that Plaintiffs’ children attend. And presumably Iowa
schools and their lawyers have come to the same conclusion since none has acted to
impose a district-wide, or building-wide universal mask mandate based on some
requirement of federal law. As this suit continues—perhaps even as quickly as the
upcoming consideration of Plaintiffs’ motion for a preliminary injunction—the parties
can flesh out this dispute over the requirements of federal law. But there’s no need
for a temporary restraining order to prevent enforcement of section 280.31.
II. A temporary restraining order enjoining enforcement of section
280.31 wouldn’t redress Plaintiffs’ alleged harms because it wouldn’t
provide a universal mask mandate in the schools.
Plaintiffs’ requested temporary restraining order isn’t just unnecessary—it’s
also insufficient to redress their alleged irreparable harms. They assert that their
irreparable harms are “heightened risk of exposure” to COVID-19 if they attend in-
person school or “loss of educational opportunities” if the students are removed from
school. Mem. of Authorities in Support of Mtn. for PI & TRO, Doc. 17, at 13–14. And
they believe that “[i]f everyone were wearing a mask,” these harms would be avoided
and “their children would be safe.” Id. at 12.
But Plaintiffs are not asking this court for an injunction requiring everyone in
their children’s schools to wear a mask. They seek only to enjoin Governor Reynolds
and Director Lebo from enforcing section 280.31. Complaint, Doc. 1, at 37 ¶ 4. That
won’t remedy their claimed harm. It’s dependent on the actions of elected school
boards to decide whether they will in fact implement a universal mask mandate in
-5-
Case 4:21-cv-00264-RP-SBJ Document 21 Filed 09/09/21 Page 6 of 8
their school districts like Plaintiffs hope. This lack of redressability is an Article III
standing concern with the relief that Plaintiffs seek. See Friends of the Earth, Inc. v.
Laidlaw Envt’l Servs (TOC), Inc., 528 U.S. 167, 185 (2000) (“[A] plaintiff must
demonstrate standing separately for each form of relief sought.”). And it shows that
a temporary restraining order seeking such relief is inappropriate.
III. A temporary restraining order enjoining a statute that has been in
effect for nearly four months would upset the status quo and cause
unnecessary confusion and conflict until the merits of the preliminary
injunction and validity of this lawsuit can be considered.
Section 280.31 has been in effect since May 20, 2021. See Act of May 20, 2021
(H.F. 847), ch. 139, 2021 Iowa Act § 28 (to be codified at Iowa Code § 280.31). Over
these past four months, Plaintiffs have thus been on notice that schools are now
generally prohibited from mandating face coverings. They have known that classes
would be resuming in August. And more than two months ago, it was publicly known
that the Delta Variant of COVID-19 was the dominant strain in the United States.
See Emily Anthes, Delta, as Expected, Is Now the Dominant Virus Variant in the U.S.,
the C.D.C. Estimates, N.Y. Times, July 7, 2021, available at https://perma.cc/BL3W-
2DBC. Yet they filed this lawsuit just a week ago and are immediately seeking the
extraordinary remedy of a temporary restraining order. Their delay in suing counsels
against concluding that enjoining section 280.31 is truly an emergency that cannot
wait until consideration of their preliminary injunction. See Benisek v. Lamone, 138
S. Ct. 1942, 1944 (2018) (“[A] party requesting a preliminary injunction must
generally show reasonable diligence.”).
-6-
Case 4:21-cv-00264-RP-SBJ Document 21 Filed 09/09/21 Page 7 of 8
So too does the fact that their requested temporary restraining order would
upset the status quo rather maintain it. Schools have been operating with section
280.31 in effect, in many cases for several weeks now. Suddenly enjoining that law
and reopening the debate in each school board and management team as to whether
to adjust masking requirements in their schools would create unnecessary confusion
and conflict. Even schools that would choose not to adopt a mask mandate will
question whether they are now violating federal law given the implications of this
Court’s order.
Plaintiffs’ request is thus unlike the temporary restraining order enjoining the
Tennessee Governor’s executive order on mask mandates in schools. See Doc. 6-1,
Ord. in G.S. v. Lee, No. 21-CV-02552 (W.D. Tenn. Sept. 3, 2021). That suit was filed
just nine days after the Governor issued his executive order—not four months after
the challenged action. See id. at 1, 6. It involved an injunction of unilateral executive
action—not a duly enacted statute passed by the Legislature and signed by the
Governor. And the nature of the executive order, which merely required opt-out
provisions for parents, rather than eliminating the mandates entirely, made its
injunction less disruptive.
The disruption to schools caused by granting a temporary restraining order
would be even greater if this Court would ultimately conclude after the advantage of
more robust briefing that Plaintiffs’ preliminary injunction should be denied. To avoid
this danger, the Court should deny this extraordinary request and direct the parties
to proceed with litigating the preliminary injunction.
-7-
Case 4:21-cv-00264-RP-SBJ Document 21 Filed 09/09/21 Page 8 of 8
CONCLUSION
For these reasons, this Court should deny Plaintiffs’ Motion for a Temporary
Restraining Order. The State stands ready to work with Plaintiffs to develop an
appropriate preliminary injunction record and full adversarial briefing so that the
Court may properly consider that request within a reasonable time.
Respectfully submitted,
THOMAS J. MILLER
Attorney General of Iowa
JEFFREY S. THOMPSON
Solicitor General
/s/ Samuel P. Langholz
SAMUEL P. LANGHOLZ
Assistant Attorney General
Iowa Department of Justice
1305 E. Walnut Street, 2nd Floor
Des Moines, Iowa 50319
Phone: (515) 281-5164
Fax: (515) 281-4209
sam.langholz@ag.iowa.gov
jeffrey.thompson@ag.iowa.gov
ATTORNEYS FOR DEFENDANTS
GOVERNOR KIM REYNOLDS AND
ANN LEBO
PROOF OF SERVICE
The undersigned certifies that the foregoing instrument was
served upon all parties of record by delivery in the following
manner on September 9, 2021:
U.S. Mail Email
Hand Delivery Overnight Courier
Federal Express Other
CM/ECF
Signature: /s/ Samuel P. Langholz
-8-
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