UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 22-cv-24156-BLOOM/Otazo-Reyes

RENÉ GARCIA, et al., 

Plaintiffs, 

v. 

KERRIE J. STILLMAN, et al., 

 Defendants. 

___________________________/ 

ORDER ON MOTION FOR STAY PENDING APPEAL

THIS CAUSE is before the Court upon Defendants’ Motion for Stay of Preliminary 

Injunction Pending Appeal, ECF No. [57] (“Motion”), filed on March 16, 2023. Plaintiffs filed a 

Response, ECF No. [60]. Defendants waived their right to file a Reply. ECF No. [61]. The Court 

has carefully considered the Motion, the Response, the record in this case, the applicable law, and 

is otherwise fully advised. For the reasons set forth below, Defendants’ Motion denied. 

I. INTRODUCTION

On December 27, 2022, Plaintiffs moved for a preliminary injunction enjoining Defendants 

from enforcing Article II, § 8(f)(1)-(3) of the Florida Constitution and Fla. Stat. § 112.3122. ECF 

No. [19]. On February 28, 2023, the Court granted Plaintiffs’ motion in part and denied it in part. 

See Order on Motion for Preliminary Injunction, ECF No. [52] (“Order”). Specifically, the Court 

enjoined Defendants from enforcing Article II, Section 8(f)(2) of the Florida Constitution (the “InOffice Restrictions”). Id. at 23. On March 16, 2023, Defendants appealed that Order. See ECF No. 

[56] (Notice of Appeal). 

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In their instant Motion, Defendants “do not dispute the propriety of a narrow injunction 

aimed at protecting the named plaintiffs who were determined to reasonably fear enforcement of 

the In-Office Restrictions: Plaintiffs Garcia and Fernández.” ECF No. [57] at 2. Rather, Defendants 

contend that the Court abused its discretion in extending injunctive relief beyond those two

Plaintiffs. Id. They seek a stay or modification of the Court’s Order pending appeal, limiting

injunctive relief to Plaintiffs Garcia and Fernández. Id. at 5.

In Response, Plaintiffs argue that the Court’s Order was appropriate and consistent with 

binding precedent striking down laws deemed facially unconstitutional under the First 

Amendment. See generally ECF No. [60].

Defendants waived their right to file a Reply. ECF No. [61]. On April 7, 2023, they filed a 

similar Motion to Stay in the Eleventh Circuit Court of Appeals. See No. 23-10872, Garcia v. 

Exec. Dir., Fla. Comm’n on Ethics (11th Cir. Apr. 7, 2023). The Court deferred to the Eleventh 

Circuit to determine if the requested stay should be granted. See ECF No. [66]. On May 10, 2023, 

the Eleventh Circuit denied Defendants’ motion to stay without prejudice, giving this Court the 

opportunity to consider in the first instance whether to modify its injunction. ECF No. [76-1] at 4-

5.

II. LEGAL STANDARD

When an appeal is taken from an interlocutory order granting an injunction, Federal Rule 

of Civil Procedure 62 authorizes the Court “in its discretion” to “suspend” or “modify” the 

injunction during the pendency of the appeal. Fed. R. Civ. P. 62(d). A stay pending appeal turns 

on four factors: “1) that the movant is likely to prevail on the merits on appeal; 2) that absent a 

stay the movant will suffer irreparable damage; 3) that the adverse party will suffer no substantial 

harm from the issuance of the stay; and 4) that the public interest will be served by issuing the

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stay.” Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir. 1986) (citing Jean v. Nelson, 683 F.2d 

1311, 1312 (11th Cir. 1982)). “Ordinarily the first factor is the most important.” Id. “Considering 

that this test is so similar to that applied when considering a preliminary injunction, courts rarely 

stay a preliminary injunction pending appeal.” Honeyfund.com, Inc. v. DeSantis, No. 22-cv-227, 

2022 WL 3486962, at *15 (N.D. Fla. Aug. 18, 2022).

III. DISCUSSION

A. Substantial Likelihood of Success on Appeal

Defendants argue that injunctive relieve should be “limited in scope to the extent necessary 

to protect the interests of the parties.” ECF No. [57] at 3 (quoting Keener v. Convergys Corp., 342 

F.3d 1264, 1269 (11th Cir. 2003)). Plaintiffs respond that the Court correctly applied the First 

Amendment overbreadth doctrine in issuing a statewide injunction. ECF No. [60] at 3 (citing 

Broadrick v. Oklahoma, 413 U.S. 601 (1973)).

Defendants are certainly correct that, in general, injunctive relief should be narrowly tailored 

to protect the interests of the parties. Keener, 342 F.3d at 1269; accord McKusick v. City of 

Melbourne, 96 F.3d 478, 484 n.5 (11th Cir. 1996). However, an exception exists within the context 

of a First Amendment overbreadth challenge, which “is designed to remedy the chilling effects of 

overbroad statutes – statutes that ‘have such a deterrent effect on free expression that they should 

be subject to challenge even by a party whose own conduct may be unprotected.’” FF Cosmetics 

FL, Inc. v. City of Miami Beach, 866 F.3d 1290, 1303 (11th Cir. 2017) (quoting Members of City 

Council of City of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984)). “[A] statute found to 

be overbroad is ‘totally forbidden until and unless a limiting construction or partial invalidation so 

narrows it as to remove the seeming threat or deterrence to constitutionally protected expression.’” 

Id. at 1300 (quoting Broadrick, 413 U.S. at 613). Somewhat tellingly, Defendants’ Motion does 

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not discuss or cite Broadrick or FF Cosmetics, the two cases that the Court relied upon in granting 

statewide injunctive relief. See Order, ECF No. [52] at 22.

The majority of cases cited by Defendants are unconvincing because (1) they do not involve 

the First Amendment overbreadth doctrine, and (2) they criticize nationwide injunctionsthat enjoin 

enforcement of federal law, whereas this case involves a statewide injunction prohibiting 

enforcement of a Florida law. See ECF No. [57] at 3 (citing Georgia v. President of the United 

States, 46 F. 4th 1283 (11th Cir. 2022)). In Georgia, the Eleventh Circuit held that a district court 

abused its discretion in granting a nationwide injunction prohibiting enforcement of a federal 

vaccine mandate. 46 F.4th at 1308. The Georgia court discussed at length the problems with such 

nationwide injunctions.

1 Id. at 1304-07. Although some of the court’s criticisms of nationwide 

injunctions arguably apply equally to statewide injunctions, see id. at 1304 (discussing the benefit 

of differing opinions), other concerns are less relevant when the scope of the injunction is limited 

to one state, id. at 1305 (discussing gamesmanship and forum shopping), and some do not apply 

to the statewide context at all, id. at 1304 (discussing special rules that apply when the federal 

government is a litigant). In sum, Defendants’ primary argument rests on the unsupported 

assumption that concerns related to nationwide injunctions apply equally to intrastate injunctions 

like the one issued in this case.

Defendants draw their strongest support from United States v. National Treasury 

Employees Union (NTEU), 513 U.S. 454 (1995). In that case, the Supreme Court held that a federal

honoraria ban on all Executive Branch employees violated the First Amendment, but nonetheless 

limited relief to the parties before the Court. Id. at 477-78. However, NTEU does not support 

Defendants’ position. First, the NTEU court was considering the propriety of a nationwide remedy, 

1 Notably, despite its critique of nationwide injunctions, the Georgia court reaffirmed that they “may be issued in 

appropriate circumstances.” 46 F.4th at 1304 (quotation marks omitted).

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not a statewide remedy as here. Second, the party seeking relief in NTEU was a class that 

“include[d] all Executive Branch employees below grade GS-16[.]” Id. at 478. The Supreme Court 

did not find the honoraria ban to be a content-based restriction on speech, but rather determined 

that the ban was “crudely crafted” to place an unreasonable burden on low-level employees’ First 

Amendment rights. Id. at 477. The Supreme Court declined to extend relief to more senior 

Executive officials because “the Government conceivably might advance a different justification 

for an honoraria ban limited to” them. Id. at 478. Lastly, the NTEU court rejected an alternative 

suggested remedy of redefining a portion of the federal statute, because doing so would require 

“tamper[ing] with the text of the statute, a practice we strive to avoid.” Id. at 478.

Here, by contrast, the Court found the In-Office Restrictions to be an unconstitutional

content-based restriction on speech. ECF No. [52] at 16. They therefore violate the rights of lowlevel and upper-level officials alike. Unlike the litigants in NTEU, Plaintiffs Garcia and Fernández 

do not comprise a class of the individuals whose rights are most likely to be unjustifiably burdened 

by the challenged law. Plaintiffs have produced credible evidence that the In-Office Restrictions 

burden a substantial amount of third parties’ protected speech. ECF No. [52] at 10. Finally, this 

Court’s injunction did not “tamper with the text” of the In-Office Restrictions in any way. NTEU, 

513 U.S. at 478. 

As Plaintiffs correctly argue, it is routine, appropriate, and necessary for a district court to 

preliminarily enjoin Florida from enforcing a law that likely violates the First Amendment. See, 

e.g., FF Cosmetics, 866 F.3d at 1304 (affirming a preliminary injunction prohibiting enforcement 

of an ordinance successfully challenged under the First Amendment overbreadth doctrine); 

Honeyfund.com, 2022 WL 3486962 at *14 (preliminarily enjoining enforcement of a statute that 

“unconstitutionally discriminates on the basis of viewpoint”). When defining the scope of the

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injunction in this case, the Court was mindful that invalidating a law based on the overbreadth 

doctrine is “strong medicine.” Broadrick, 413 U.S. at 613. However, strong medicine is necessary 

when a constitutionally infirm law is not readily capable of a “limiting construction.” Id. No 

plausible limiting construction has been proposed in this case.

In sum, Defendants have not shown that they are substantially likely to prevail on the merits 

of their appeal. 

B. The Remaining Factors

“Normally, a failure to satisfy the first factor in a motion for stay pending appeal dooms 

the motion.” In re Freedom Unlimited, 489 F. Supp. 3d 1328, 1338 (S.D. Fla. 2020) (citation 

omitted). However, a “movant may also have his motion granted upon a lesser showing of a 

substantial case on the merits when the balance of the equities [identified in factors 2, 3, and 4] 

weighs heavily in favor of granting the stay.” Garcia-Mir v. Meese, 781 F.2d at 1453 (alteration 

in original) (quotation marks omitted).

Beginning with irreparable harm, Defendants argue that “[a]ny time a State is enjoined by 

a court from effectuating statutes enacted by representatives of its people, it suffers a form of 

irreparable injury.” ECF No. [57] (quoting Maryland v. King, 567 U.S. 1301, 1303 (2012) 

(Roberts, C.J., in chambers)). Plaintiffs accurately respond that “there can be no irreparable harm 

to [the State] when it is prevented from enforcing an unconstitutional statute[.]” KH Outdoor, LLC 

v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006) (quotation marks omitted).

Regarding the balance of harms, Defendants are correct that the two Plaintiffs with 

standing – Garcia and Fernández – will not be harmed by modifying the injunction as Defendants 

request. ECF No. [57] at 4. However, given the purpose of the overbreadth doctrine “to protect the 

public from the chilling effect such a statute has on protected speech,” Weaver v. Bonner, 309 F.3d 

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1312, 1318 (11th Cir. 2002) (quotation marks omitted), it is arguably necessary for the Court to 

consider the harm that Defendants’ requested stay would cause to “others not before the court.” 

Broadrick, 413 U.S. at 612; see also Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First 

Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable 

harm.”). In such case, the balance of harms certainly disfavors the requested stay, which would 

subject countless public officers to potential enforcement of a law that likely violates their First 

Amendment rights. However, even assuming that the interests of third parties are not appropriately 

considered at this juncture, this factor in Defendants’ favor does not outweigh the other three stay 

factors, all of which favor Plaintiffs.

Concluding with the final factor, “[t]he public has no interest in enforcing an 

unconstitutional” law. KH Outdoor, 458 F.3d at 1272. Defendants have not even attempted to 

dispute the Court’s determination that the In-Office Restrictions are unconstitutional, so this factor 

favors Plaintiffs.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that Defendants’ Motion for Stay, ECF 

No. [57], is DENIED.

DONE AND ORDERED in Chambers at Miami, Florida, on May 15, 2023.

_________________________________

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to: 

Counsel of Record

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