Opinion
Case No. 3:03CV7637
January 30, 2004
ORDER
Pending is plaintiffs' motion for an injunction pending appeal. The motion will be denied This case arose from passage by the City Council of Toledo, Ohio, of "The Clean Indoor Air Ordinance of 2003." Plaintiffs, owners of restaurants and bars in Toledo, challenged the legality of the ordinance. This Court denied plaintiffs' motion for a preliminary injunction, on the merits, by order dated
The original challenge took two forms: first, plaintiffs allege that the ordinance constitutes a "taking" under U.S. Const. Amend. V; second, plaintiffs allege that the ordinance is in conflict with a general law of the state of Ohio, and is thus void. The motion for an injunction pending appeal raises only the former argument. For this reason, this order will discuss only the takings claim. To the extent that plaintiffs seek to challenge this court's ruling on the state law issue, I incorporate by reference herein my discussion of the merits of that argument from my order dated November 19, 2003. Had plaintiffs requested an injunction pending appeal on the basis of the state law issue, it would have been denied as well.
November 19, 2003. Thereafter, the Court entered an order finalizing the case, with judgment in favor of defendant.
Plaintiffs have filed an appeal, and now seek an injunction pending appeal, pursuant to Fed.R.Civ.P. 62(c), which provides, in relevant part:
(c) Injunction Pending Appeal. When an appeal is taken from an interlocutory or final judgment . . . denying an injunction, the court in its discretion may . . . grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party. . . .
Fed.R.Civ.P. 62(c). The standard for an injunction pending appeal includes consideration of the following familiar factors:
(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[n injunction]; (3) whether issuance of the [injunction] 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). As the Sixth Circuit has explained,
Although the factors to be considered are the same for both a preliminary injunction and a stay [or injunction] pending appeal, the balancing process is not identical due to the different procedural posture in which each judicial determination arises. . . . [A] movant seeking a stay [or injunction] pending review on the merits of a district court's judgment will have greater difficulty in demonstrating a likelihood of success on the merits. In essence, a party seeking a stay [or injunction] must ordinarily demonstrate to a reviewing court that there is a likelihood of reversal. Presumably, there is a reduced probability of error, at least with respect to a court's findings of fact, because the district court had the benefit of a complete record that can be reviewed by this court when considering the motion for a stay.
To justify the granting of a[n injunction], however, a movant need not always establish a high probability of success on the merits. The probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury plaintiffs will suffer absent the [injunction]. Simply stated, more of one excuses less of the other. This relationship, however, is not without its limits; the movant is always required to demonstrate more than the mere "possibility" of success on the merits. For example, even if a movant demonstrates irreparable harm that decidedly outweighs any potential
harm to the defendant if a stay is granted, he is still required to show, at a minimum, "serious questions going to the merits. "
Of course, in order for a reviewing court to adequately consider these four factors, the movant must address each factor, regardless of its relative strength, providing specific facts and affidavits supporting assertions that these factors exist.Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153-54 (6th Cir. 1991) (emphasis added, citations omitted). "Because the burden of meeting this standard is a heavy one, more commonly stay requests will not meet this standard and will be denied." 11 Charles A. Wright, Arthur R. Miller Mary Kay Kane, Federal Practice and Procedure, § 2904 at 503-05 (1995).
I find that plaintiffs have failed to meet the standard for an injunction pending appeal.
Likelihood of Success
As to the likelihood of success on appeal, plaintiffs have not shown "a likelihood of reversal" or "serious questions going to the merits." As explained in this court's previous order, the analysis on the partial regulatory takings claim involves consideration of three main factors:
1) the character of the governmental action; 2) the economic impact of the regulation on the claimant; and 3) the extent to which the regulation has interfered with the claimant's distinct investment-backed expectations.Waste Mgmt., Inc. v. Metropolitan Gov't of Nashville, 130 F.3d 731, 737 (6th Cir. 1997). Plaintiffs do not dispute that this is the proper legal standard applicable to their claim.
Plaintiffs' disagreement with the result of this court's analysis of the takings claim does not automatically constitute a likelihood of reversal on appeal. Plaintiffs have failed to cite any relevant legal principle that was not considered and applied by this court in the November 19, 2003 order. Plaintiffs have also failed to point to any factual mistakes in the court's order. The standard of review on appeal of this court's order will be the abuse of discretion standard. Nothing in plaintiffs' motion or reply convinces me that I misapplied the law to the facts, much less abused my discretion.
Plaintiffs' motion does contain some cross-examination type questions directed at Dr. Price's testimony. Plaintiffs' counsel chose not to ask these questions on cross-examination, despite the opportunity to do so. Plaintiffs cannot now claim that hypothetical answers to these hypothetical questions (which, of course, do not appear in the record) could somehow support their position on appeal.
As to the character of the action, plaintiffs argue that the only consideration the court gave was to the "purpose" of the regulation. (Doc. 24, at 4.) Plaintiffs are mistaken. This court's analysis, while concise, took into consideration the nature of the regulation itself (i.e., land-use versus health regulation), the extent of the problem it was intended to address, the substance and content of the law insofar as it related to the problem it was intended to address, the consideration given to alternative means to address that problem as compared to the means in the given regulation, and the risk of harm to the intended beneficiaries of the regulation had it not been enacted or enforced. (Doc. 15, at 7.) The effect of the regulation is a consideration properly made in the analysis of the second prong (economic impact of the regulation), not the first; plaintiffs' argument that this court should have considered the effect of the regulation in the character analysis is incorrect.
Nonetheless, the court certainly considered, in the proper order, the effect of the regulation. As to the economic impact, the court specifically found that the regulation would have and had already had an adverse economic impact on plaintiffs' businesses, and further stated that this was the most compelling part of plaintiffs' case. However, despite plaintiffs' wishes to the contrary, this is not the only consideration in the takings analysis.
Finally, as to the reasonable investment-based expectations, the court considered the legal backdrop as it has developed for the past fifty years. Despite plaintiffs' wishes to the contrary, the inquiry is an objective one; it does not rise or fall on plaintiffs' subjective expectations, insofar as they do not coincide with objective expectations. As stated in this court's order, "[a] 'reasonable investment-backed expectation' must be more than a 'unilateral expectation or an abstract need.' "Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005-06 (1984) (quoting Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161 (1980)). Plaintiffs unilateral expectation that the law would always permit smoking in their establishments, without substantial regulation, is simply unreasonable. Plaintiffs' "abstract need" to cater (some even selectively) to smokers, despite the possible harm to non-smokers and employees, without substantialregulation, is simply unreasonable. Neither of these constitutes a reasonable investment-backed expectation acknowledged in the law.
Plaintiffs' claim that the challenged regulation is a "total ban on legal activity" (Doc. 24, at 5), is, of course, an unwarranted exaggeration. There are several exceptions and exemptions provided in the regulation, including the option of which some plaintiffs have availed themselves — the building of an enclosed smoking lounge — making the regulation fall far short of a total ban.
In summary, plaintiffs have failed to demonstrate a likelihood of success on appeal. This factor weighs heavily against injunctive relief.
Irreparable Injury
As to irreparable injury, the inquiry is whether plaintiffs will suffer irreparable injury/harm if the defendant is not enjoined from enforcing the regulation during pendency of the appeal. The inquiry is not whether the regulation has already caused harm in the past, although that is relevant to whether it may, in the future, do so. Harm that has already occurred cannot be remedied by prospective injunctive relief. Nonetheless, the court finds that the likelihood of future harm to plaintiffs during the pendency of the appeal does not outweigh the lack of probability of success on the merits of the appeal. As stated above, "even if a movant demonstrates irreparable harm that decidedly outweighs any potential harm to the defendant if a stay is granted, he is still required to show, at a minimum, 'serious questions going to the merits.' " Griepentrog, 945 F.2d at 154.
Balance of Harm to Others
As to balance of harms, I find that the threat of harm to non-smokers and employees of plaintiffs' establishments to be significant This factor weighs against injunctive relief pending appeal.
Public Interest
As to the public interest, I find that the public interest would be served by leaving the status quo intact. Permitting enforcement of what appears to be a legally valid ordinance while on review in the Sixth Circuit is a valid public interest. This factor also weighs against granting injunctive relief pending appeal.
In summary, on balance, I find that consideration of the above four factors weighs against injunctive relief pending appeal.
CONCLUSION
It is therefore
ORDERED THAT plaintiffs' motion for an injunction pending appeal be, and hereby is denied.
So ordered.