Motion To Extend Temporary

Summary

Plaintiffs' Motion to Extend Temporary Restraining Order, filed September 22, 2021 as Document 44 in The Arc of Iowa et al. v. Kim Reynolds et al., Case No. 4:21-cv-00264-RP-SBJ, in the U.S. District Court for the Southern District of Iowa. Under Federal Rule of Civil Procedure 65(b)(2), the plaintiffs ask for a 14-day extension of the TRO entered September 13, 2021 barring enforcement of Iowa Code section 280.31. The motion argues good cause exists because the grounds for the TRO persist, citing a rise in the state's seven-day reported case rate, and because of the briefing schedule on the pending preliminary injunction motion. It asks that the TRO be extended until October 11, 2021 or until the Court decides the preliminary injunction motion. Counsel include the American Civil Liberties Union of Iowa and Disability Rights Iowa.

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       Case 4:21-cv-00264-RP-SBJ Document 44 Filed 09/22/21 Page 1 of 8




                       IN THE UNITED STATES DISTRICT COURT
                      FOR THE SOUTHERN DISTRICT OF IOWA


 THE ARC OF IOWA et al.,

                Plaintiffs,                                         Case No. 4:21-cv-264
        v.

 KIM REYNOLDS et al.,                                    MOTION TO EXTEND TEMPORARY
                                                              RESTRAINING ORDER
                Defendants.


       COME NOW Plaintiffs, pursuant to Federal Rule of Civil Procedure 65(b)(2), and

respectfully ask this Court to grant a 14-day extension of the Temporary Restraining Order entered

on September 13, 2021 in the above captioned matter. Plaintiffs state as follows in support thereof:

   1. In its Order granting a temporary restraining order (“TRO”) barring enforcement of Iowa

       Code section 280.31 on September 13, 2021, this Court carefully applied the “Dataphase”

       factors in determining that Plaintiffs had met their burden of demonstrating, by a

       preponderance of the evidence, (1) irreparable harm to the movant absent injunctive relief;

       (2) the balancing of this harm and any injuries which granting the injunction would inflict

       on other parties weighed in favor of an injunction; (3) that Plaintiffs were likely to succeed

       on the merits of at least two of their claims; and (4) the public interest weighed in favor of

       injunctive relief. ECF No. 17, at 14-29 (citing Dataphase Sys., Inc. v. CL Sys., Inc., 640

       F.2d 109, 114 (8th Cir.1981) (en banc)).

   2. The TRO followed a hearing on September 10, 2021, at which time Plaintiffs and

       Defendants Kim Reynolds and Ann Lebo presented their arguments. All Defendant school

       districts except for the Iowa City Community School District took no position on the TRO.

       The Iowa City Community School District made a statement through counsel, submitted




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   to the Court with permission by Plaintiffs, that it had no objection to entry of the TRO. All

   parties also had the opportunity to submit briefing in the matter, and Defendants Kim

   Reynolds and Ann Lebo filed briefing in resistance to the Motion for a TRO.

3. Absent an extension for good cause or with consent of the parties, a TRO would normally

   expire after 14 days. Fed. R. Civ. P. 65(b)(2).

4. Rule 65 of the Federal Rules of Civil Procedure authorizes the court to extend a TRO for a

   period of fourteen days if the court finds that “good cause” justifies an extension. Fed. R.

   Civ. P. 65(b)(2). See also Babcock v. Babcock, No. 20-cv-00066, 2020 WL 6293445, at *2

   (S.D. Iowa Aug. 24, 2020) (“Rule 65(b)(2) provides a TRO may not extend beyond

   fourteen days, 'unless before that time the court, for good cause, extends it for a like period

   or the adverse party consents to a longer extension.’”); Charles Wright and Arthur Miller,

   Federal Practice and Procedure, 11A Wright § 2953 (3d ed.) (“a showing that the grounds

   for originally granting the temporary restraining order continue to exist should be

   sufficient”).

5. Broadly, the district court has discretion in determining “good cause” based on the

   procedural posture of a case. It is well-established that “good cause” includes time to

   adequately brief the court in a preliminary injunction hearing and to give the court

   sufficient time to consider a preliminary injunction once the case is submitted. See, e.g.,

   H-D Michigan, LLC v. Hellenic Duty Free Shops S.A., 694 F.3d 827, 843-45 (7th Cir.

   2012) (recognizing TRO extensions are given “to provide the parties adequate time to

   prepare for a preliminary injunction hearing”); Costa v. Bazron, No. 19-318, 2020 WL

   2410502, at *2 (D.D.C. May 11, 2020) ("[T]he Court finds that good cause exists to extend

   the TRO because the parties need time to brief, and the Court needs time to consider, the




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       forthcoming motion for a preliminary injunction."); SEC v. Arisebank, No. 18-cv-186,

       2018 WL 10419828 at *1 (N.D. Tex. Mar. 9, 2018) (collecting cases on TRO extensions

       for “good cause”).

   6. Here, good cause exists because the grounds for originally granting the TRO persist, and

       Plaintiffs will suffer immediate and irreparable injury absent continued injunctive relief.

       Harris v. Blue Cross Blue Shield of Mo., 995 F.2d 877, 879 (8th Cir. 1993) (establishing

       irreparable injury exists when the harm is to a “life threatening interest”). If anything,

       circumstances have deteriorated. On September 13, when the court entered the TRO, the

       state had a seven-day reported case rate of 1,370. 1 On September 21, this rate soared to a

       seven-day reported average of 1,811,2 with a particularly troubling surge among children.3

   7. Today, Iowa Code section 280.31 still poses the same risks to Plaintiffs’ children’s health.

       By prohibiting the implementation of masking requirements in Iowa schools, the law

       substantially increases the risk that children will contract COVID-19; the potential harm is

       greatest for children like Plaintiffs, whose disabilities put them at risk of severe illness

       should they contract COVID-19. Their risk is only greater now than when the Court granted

       the TRO. This is clearly not an example where the threat of irreparable injury has dissipated

       between the entering of a TRO and the scheduled date of preliminary injunction hearing.



1 Tracking Coronavirus in Iowa: Latest Map and Case Count, N.Y. Times (Sept. 22, 2021),

https://www.nytimes.com/interactive/2021/us/iowa-covid-cases.html.
2 Id.
3 Tim Webber, Iowa sets new 2021 high for COVID hospitalizations — with new reported cases

not       far       behind,        Des       Moines       Reg.         (Sept.     22,       2021),
https://www.desmoinesregister.com/story/news/health/2021/09/22/covid-19-iowa-state-reaches-
2021-high-hospitalizations-delta-variant-cases-deaths/5804666001/ (“Among the hospitalized
patients are 18 children, an age group that again accounted for the largest number of new reported
cases over the previous week. More than 3,000 additional children were reported positive for
COVID-19 in Wednesday's data update — more than a quarter of the state's 12,163 new reported
cases.”).


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   See, e.g., North Dakota v. U.S. Army Corps of Engr's, 264 F. Supp. 2d 871, 879 (D.N.D.

   2003).

8. Nor is Plaintiffs’ likelihood of success on the merits in any way diminished. Rather, it is

   bolstered by the recent decision of the district court of Tennessee issuing a preliminary

   injunction in a similar case. G.S. et al. v. Lee et al., No. 21-cv-02552, ECF No. 62 (W.D.

   Tenn. Sept. 17, 2021).

9. Therefore, under the Dataphase factors this Court applied in entering the TRO on

   September 13, 2021, the equities weigh even more heavily in favor of continued injunctive

   relief.

10. Good cause also exists based on the procedural posture of the case.

11. Plaintiffs’ deadline to file a Reply to the Response filed by Defendants Reynolds and Lebo

   to their motion for a preliminary injunction is September 28, a day after the fourteen-day

   expiration of the TRO on September 27.

12. In addition, Plaintiffs will be submitting the supplemental declarations that Defendants

   Reynolds and Lebo have agreed they may submit in lieu of putting on witnesses at a

   hearing. This agreed-upon process of gathering the supplemental affidavits will take less

   time than setting a hearing on the preliminary injunction, but does require some additional

   time beyond September 27, 2021 to prepare.

13. Finally, Plaintiffs intend to resist Defendants Reynolds and Lebo’s pending request that

   this Court set a $25,000 bond on the preliminary injunction, should the Court grant the

   Plaintiff’s motion.

14. This necessitates a fourteen-day extension of the TRO until October 11, 2021 or until the

   Court decides the Preliminary Injunction motion prior to that date.




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Dated September 22, 2021.


Respectfully submitted:


AMERICAN CIVIL LIBERTIES UNION OF IOWA

/s/ Rita Bettis Austen
Rita Bettis Austen, AT0011558
ACLU of Iowa Foundation Inc.
505 Fifth Avenue, Suite 901
Des Moines, IA 50309-2316
Telephone: 515-243-3988
Facsimile: 515-243-8506
rita.bettis@aclu-ia.org

/s/ Shefali Aurora
Shefali Aurora, AT0012874
ACLU of Iowa Foundation Inc.
505 Fifth Avenue, Suite 901
Des Moines, IA 50309-2316
Telephone: 515-243-3988
Facsimile: 515-243-8506
shefali.aurora@aclu-ia.org

/s/Leah Patton
Leah Patton, AT0006022
ACLU of Iowa Foundation Inc.
505 Fifth Avenue, Suite 901
Des Moines, IA 50309-2316
Telephone: 515-243-3988
Facsimile: 515-243-8506
leah.patton@aclu-ia.org

DISABILITY RIGHTS IOWA
Cynthia A. Miller (AT0005382)
666 Walnut Street, Suite 1440
Des Moines, IA 50309
T: (515) 278-2502
E: cmiller@driowa.org

Catherine Johnson* (AT0004006)
666 Walnut Street, Suite 1440
Des Moines, IA 50309


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T: (515) 278-2502
E: cjohnson@driowa.org


AMERICAN CIVIL LIBERTIES UNION FOUNDATION

Louise Melling*
125 Broad St.
New York, NY 10004
T: (212) 549-2637
E: lmelling@aclu.org

Susan Mizner*
39 Drumm Street
San Francisco, CA 94111
T: (415) 343-0781
E: smizner@aclu.org


ARNOLD & PORTER KAYE SCHOLER LLP

John A. Freedman
Tara L. Williamson*
601 Massachusetts Ave, NW
Washington, DC 20001
T: 202.942.5316
E: john.freedman@arnoldporter.com


THE ARC OF THE UNITED STATES

Shira Wakschlag
The Arc of the United States
1825 K Street, NW, Suite 1200
Washington, DC 20006
Telephone: 202-534-3708
Facsimile: 202-534-3731
wakschlag@thearc.org

*Motion to proceed pro hac vice forthcoming


TOM DUFF LAW FIRM

/s/ THOMAS J. DUFF
THOMAS J. DUFF



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Case 4:21-cv-00264-RP-SBJ Document 44 Filed 09/22/21 Page 7 of 8




/s/ JIM DUFF
JIM T. DUFF
DUFF LAW FIRM, PLC
The Galleria
4090 Westown Pkwy, Suite 102
West Des Moines, Iowa 50266
Telephone: (515) 224-4999
Fax: (515) 327-5401
Email : tom@tdufflaw.com
jim@tdufflaw.com
wendy@tdufflaw.com

Attorneys for the Plaintiffs




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       Case 4:21-cv-00264-RP-SBJ Document 44 Filed 09/22/21 Page 8 of 8




                                CERTIFICATE OF SERVICE


       I hereby certify that on this date, I electronically filed the foregoing paper with the Clerk
of Court by using the CM/ECF system.


Date: September 22, 2021

/s/Rita Bettis Austen
Rita Bettis Austen




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