V.A. v. San Pasqual Valley Unified School District et al, No. 3:2017cv02471 - Document 6 (S.D. Cal. 2017)
Court Description: ORDER granting 3 Motion for Temporary Restraining Order. The Court enjoins Defendants from enforcing the San Pasqual Valley Unified School Districts policy on actions during the national anthem. Further, the Court orders Defendants to respond to Pl aintiffs Motion for Preliminary Injunction no later than 12:00 p.m. on Monday, December 18, 2017; and orders the parties to appear on Tuesday, December 19, 2017, at 2:00 p.m. in Courtroom 4B for oral argument on the preliminary injunction motion. Finally, Plaintiff is to serve Defendants with this Order as soon as practical, but no later than 12:00 p.m. on Wednesday, December 13, 2017. Signed by Judge Cynthia Bashant on 12/12/2017. (bxc)
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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 V.A., Case No. 17-cv-02471-BAS-AGS Plaintiff, 14 15 16 17 18 ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER v. AND SAN PASQUAL VALLEY UNIFIED SCHOOL DISTRICT, et al., ORDERING DEFENDANTS TO SHOW CAUSE REGARDING PRELIMINARY INJUNCTION Defendants. [ECF No. 3] 19 20 21 22 Presently before the Court is Plaintiff V.A.’s Motion for Temporary 23 Restraining Order (“TRO”) and Preliminary Injunction to enjoin Defendants San 24 Pasqual Valley Unified School District, Board Of Trustees Of The San Pasqual 25 Valley Unified School District, Monica Montague, Bernadine Swift Arrow, Rebecca 26 Ramirez, Sally Ann Decorse, Lisa Aguerro, Rauna Fox, and Darrell Pechtl 27 (collectively, “Defendants”) from enforcing a school district policy related to 28 kneeling during the national anthem. Defendants informally objected to the motion –1– 17cv2471 1 through an email sent to the Court and Plaintiff’s counsel on December 12, 2017. For 2 the reasons stated below, the Court GRANTS Plaintiff’s motion for a TRO, and sets 3 the case for a hearing on whether a preliminary injunction should be issued. 4 5 I. BACKGROUND 6 Plaintiff is a high school senior at San Pasquel Valley High School (“School”), 7 who plays on the School’s varsity sports teams. (V.A. Decl. ¶¶ 2, 5-6.) The School is 8 a public school in the San Pasquel Valley Unified School District (“District”). 9 (Verdin Decl. ¶ 2.) At two games during the recent football season, Plaintiff kneeled 10 during the national anthem to express a reminder that “racial injustice in our country” 11 exists, “which we must not tolerate.” (V.A. Decl. ¶ 8, 9, 15.) 12 At issue in this case is the District’s policy created in the days following an 13 incident after one of the high school football games where Plaintiff chose to kneel 14 during the national anthem. After an away game, a few students from the opposing 15 high school made racial slurs and threats directed at the School’s students. (Adina A. 16 Decl. ¶¶ 16-18, 21.) Following that incident, the District announced a new policy that 17 stated: 18 19 20 21 22 Students and coaches shall stand and remove hats/helmets and remain standing during the playing or singing of the national anthem. Kneeling, sitting or similar forms of political protest are not permitted during athletic events at any home or away games. Violations may result in removal from the team and subsequent teams during the school year. (Verdin Decl. ¶ 3, Ex. 1.) 23 The next basketball games will be held today (an away game) and on 24 December 15, 2017 (a home game). (V.A. Decl. ¶ 38.) Plaintiff expresses a desire to 25 kneel during the national anthem at those games, as well as any other upcoming 26 games. (Id. ¶¶ 32, 38-39; Verdin Decl. ¶ 10.) 27 28 –2– 17cv2471 1 II. STANDARD 2 The standard for a TRO and preliminary injunction are “substantially 3 identical.” See Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 4 832, 839 n.7 (9th Cir. 2001). 5 6 7 8 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. 9 Am. Trucking Ass’ns Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 10 2009) (quoting Winter v. Nat. Res. Defense Council, Inc., 555 U.S. 7, 21 (2008)). A 11 TRO’s “underlying purpose [is to] preserv[e] the status quo and prevent[] irreparable 12 harm” until a preliminary injunction can be held. See Granny Goose Foods, Inc. v. 13 Bhd. Of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (1974). 14 Under Federal Rule of Civil Procedure 65(b), a court may grant a TRO: 15 16 17 18 19 without written or oral notice to the adverse party . . . only if (1) it clearly appears . . . that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required. 20 21 These stringent requirements are imposed because “our entire jurisprudence runs 22 counter to the notion of court action taken before reasonable notice and an 23 opportunity to be heard has been granted both sides of a dispute.” Granny Goose 24 Foods, Inc., 415 U.S. at 439. When granting a TRO without an opportunity for the 25 opposing party to respond, the court can consider whether time is a pressing factor, 26 as well as craft an order with a narrow scope and limited duration to justify the lack 27 of notice. Cf. Am. Can Co. v. Mansukhani, 742 F.2d 314, 322 (7th Cir. 1984) (finding 28 time was not pressing and, thus, a TRO without notice was not necessary); see In –3– 17cv2471 1 the Matter of Vuitton et Fils S.A., 606 F.2d 1, 5 (2d Cir. 1979) (stating that petitioner’s 2 justification was sufficient to support an order “narrow in scope and brief in its 3 duration”). 4 Under Federal Rule of Civil Procedure Rule 65(c), a TRO may only be granted 5 if the movant “gives security in an amount that the court considers proper to pay the 6 costs and damages sustained by any party found to have been wrongfully enjoined or 7 restrained.” “Rule 65(c) invests the district court with discretion as to the amount of 8 security required, if any.” Johnson v. Couturier, 572 F.3d 1067, 1085 (9th Cir. 9 2009) (internal quotation omitted). Thus, if the court finds that “there is no realistic 10 likelihood of harm to the defendant from enjoining his or her conduct,” the court may 11 dispense of the requirement of filing a bond. Id. 12 13 III. DISCUSSION 14 The Court grants this TRO without hearing formal oral or written opposition 15 from Defendants. The Court finds that this is necessary given the pressing time factor 16 because Plaintiff intends to kneel during the national anthem at the School’s 17 basketball games tonight and in three days. If the TRO is not granted, Plaintiff will 18 be irreparably harmed. The Court also only enforces this TRO until the preliminary 19 injunction hearing, which is scheduled in seven days, and by that time, Defendants 20 will have an opportunity to object both in writing and in person. See Granny Goose 21 Foods, Inc., 415 U.S. at 438-39 (“[U]nder federal law [ex parte TROs] should be 22 restricted to serving their underlying purpose of preserving the status quo and 23 preventing irreparable harm just so long as is necessary to hold a hearing, and no 24 longer.”). Additionally, the scope of this TRO is very narrow as it only suspends the 25 enforcement of the District’s policy for actions during the national anthem played at 26 athletic events. Id. It is likely that the national anthem is played only a few times at 27 the District’s athletic events over the next week. The Court notes that, in an email 28 sent to the Court today, Defendants’ counsel stated that the national anthem is not –4– 17cv2471 1 played at any basketball games and that the District’s policy was tabled. Without 2 providing any supporting evidence and considering Defendants’ counsel’s October 3 28, 2017 letter to the contrary (Verdin Decl. at Ex. 4), the Court finds that these 4 representations are insufficient to warrant denying the TRO. 5 Additionally, Defendants had advance notice of the TRO motion, and, after 6 reviewing the filed TRO motion papers, chose not to respond until after Plaintiff 7 requires relief. Plaintiff’s counsel certifies that she sent a letter to Defendants and 8 Defendants’ counsel on December 7, 2017 stating that Plaintiff would be filing this 9 motion and requesting a response the next day, which she did not receive. (Verdin 10 Decl. ¶ 11). Plaintiff’s counsel also certifies that she and Defendants have been in 11 contact several times over the past two months on this matter. (Id. ¶ 4-8.) Plaintiff’s 12 counsel also certified that Plaintiff advised her that he plans to kneel at the basketball 13 game on December 15, 2017. (Id. ¶ 10.) Earlier today, Defendants’ counsel emailed 14 the Court and Plaintiff’s counsel to state that he was out-of-state (having left the day 15 after Plaintiff’s counsel sent him notice of this impending TRO motion), had 16 reviewed the briefing, and would respond formally on Monday, December 18, or as 17 this Court orders. No other formal requests or objections were made. This 18 communication demonstrates to the Court that Defendants are on notice of the TRO 19 motion, including the request for immediate relief given the upcoming basketball 20 games, and chose to formally object only after Plaintiff would be irreparably harmed. 21 Cf. Vargas v. GB Inland Properties LLC, 2014 WL 12586241 (denying TRO when 22 Plaintiff failed to “detail[] any specific facts showing that he will be irreparably 23 harmed, absent a TRO, before Defendants can be heard in opposition”). Given this, 24 the Court finds that issuing a TRO of limited scope and duration without hearing 25 formal objections from Defendants is warranted. 26 Turning to the merits of the TRO, the Court finds that Plaintiff has satisfied 27 the four prong test. See Am. Trucking Ass’ns Inc., 559 F.3d at 1052; see also Klein v. 28 City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009) (“[C]aselaw clearly favors –5– 17cv2471 1 granting preliminary injunctions to a plaintiff . . . who is likely to succeed on the 2 merits of his First Amendment claim.”). 3 Based on the papers filed by Plaintiff, and without the benefit of an opposition, 4 at this stage of the proceedings, the Court finds that Plaintiff is likely to succeed on 5 the merits. See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624. 633, 642 (“[T]he 6 action of the local authorities in compelling the flag salute and pledge transcends 7 constitutional limitations on their power and invades the sphere of intellect and spirit 8 which it is the purpose of the First Amendment to our Constitution to reserve from 9 all official control.”). 10 Second, Plaintiff is likely to suffer irreparable harm because of the violation 11 of his First Amendment rights. “[T]he loss of First Amendment freedoms, for even 12 minimal periods of time, unquestionably constitutes irreparable injury.” Associated 13 Press v. Otter, 682 F.3d 821, 826 (9th Cir. 2012) (quoting Elrod v. Burns, 427 U.S. 14 347, 373 (1976)); see also Doe v. Harris, 772 F.3d 563, 583 (“A colorable First 15 Amendment claim is irreparable injury sufficient to merit the grant of [injunctive] 16 relief.” (internal quotations and citations omitted)). 17 Lastly, the balance of equities and public interest tips in favor of granting the 18 TRO. Defendants likely do not risk much harm because, when Plaintiff first kneeled 19 at a game, he did so peacefully and without incident. (V.A. Decl. ¶¶ 12-14.) This risk 20 of harm appears minimal when compared to Plaintiff’s harm to his First Amendment 21 rights. Additionally, the Ninth Circuit “consistently recognize[s] the significant 22 public interest in upholding free speech principles.” Klein, 584 F.3d at 1208 (finding 23 “balance of equities and the public interest thus tip sharply in favor of enjoining”). 24 The Court also dispenses the requirement for a bond at this time because it 25 does not appear that the TRO is likely to harm Defendants. See Gorbach v. Reno, 219 26 F.3d 1087, 1092 (9th Cir. 2000) (finding no evidence that defendants would suffer 27 damages from a preliminary injunction); IBiz, LLC v. City of Hayward, 962 F. Supp. 28 –6– 17cv2471 1 2d 1159, 1171 (N.D. Cal. 2013) (holding that no bond is required when considering 2 First Amendment claims). 3 4 IV. CONCLUSION 5 For the reasons stated below, the Court GRANTS Plaintiff’s motion for a TRO 6 and ORDERS Defendants to show cause as to why the Court should not grant 7 Plaintiff’s motion for a preliminary injunction. 8 Accordingly, the Court: 9 (1) ENJOINS Defendants, serving in their official capacities, and 10 the District’s officers, agents, and employees, from enforcing the 11 San Pasqual Valley Unified School District’s policy on actions 12 during the national anthem as stated in its October 11 and 12, 13 2017 letters from Superintendent Rauna Fox, or any other similar 14 policy that would: 15 (a) restrict Plaintiff or other students from kneeling or 16 sitting during the playing or singing of the national 17 anthem at athletic events; or 18 (b) require any action from Plaintiff or other students, such 19 as standing, during the playing or singing of the 20 national anthem at athletic events; 21 effective immediately through December 19, 2017; 22 (2) ORDERS Plaintiff to serve Defendants with this Order as soon 23 as practical, but no later than 12:00 p.m. on Wednesday, 24 December 13, 2017; 25 (3) ORDERS Defendants to respond to Plaintiff’s Motion for 26 Preliminary Injunction no later than 12:00 p.m. on Monday, 27 December 18, 2017; and 28 –7– 17cv2471 1 (4) ORDERS the parties to appear on Tuesday, December 19, 2 2017, at 2:00 p.m. in Courtroom 4B for oral argument. See Civ. 3 L.R. 7.1(d)(1). The parties should be prepared to discuss 4 Plaintiff’s Motion for Preliminary Injunction (ECF No. 3). 5 IT IS SO ORDERED. 6 7 DATED: December 12, 2017 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 –8– 17cv2471
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