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Cite as: 601 U. S. ____ (2023) 1 

Statement of KAVANAUGH, J. 

SUPREME COURT OF THE UNITED STATES 

No. 23A366 

MELANIE GRIFFIN, SECRETARY OF THE FLORIDA 

DEPARTMENT OF BUSINESS AND PROFESSIONAL 

REGULATION v. HM FLORIDA-ORL, LLC 

ON APPLICATION FOR STAY 

[November 16, 2023] 

The application for stay presented to JUSTICE THOMAS 

and by him referred to the Court is denied. 

JUSTICE THOMAS, JUSTICE ALITO, and JUSTICE GORSUCH 

would grant the application for stay. 

 Statement of JUSTICE KAVANAUGH, with whom JUSTICE 

BARRETT joins except as to footnote 1, respecting the denial

of the application for stay.

Florida recently enacted a law that makes it a 

misdemeanor for a restaurant or bar to knowingly admit a 

child to an “adult live performance,” defined as a sexually 

explicit show that would be obscene in light of the child’s 

age. Fla. Stat. §827.11 (2023). An Orlando restaurant 

known as Hamburger Mary’s sued the State (nominally, the

relevant state official) and argued that the new Florida law 

violated the First Amendment. The District Court agreed 

that the law was likely unconstitutional, and the court 

preliminarily enjoined the State from enforcing the law 

against Hamburger Mary’s or any other entity, including 

non-parties to this litigation. Florida has appealed the

District Court’s judgment to the Eleventh Circuit. That 

appeal is pending.

As relevant here, Florida seeks a partial stay of the 

District Court’s judgment while the appeal is ongoing. The 

Eleventh Circuit denied the State’s stay request, and 
 

 

 

2 GRIFFIN v. HM FLORIDA-ORL, LLC 

Statement of KAVANAUGH, J. 

Florida now asks this Court for a stay pending appeal. For 

this Court to grant a stay pending appeal, a stay applicant 

must show, among other things, “a reasonable probability” 

that this Court would eventually grant certiorari on the 

question presented in the stay application if the district 

court’s judgment were affirmed on appeal. Merrill v. 

Milligan, 595 U. S. ___, ___ (2022) (KAVANAUGH, J., 

concurring) (slip op., at 3); see Hollingsworth v. Perry, 558 

U. S. 183, 190 (2010). The State has not made that showing 

here. 

To begin with, although Florida strongly disagrees with

the District Court’s First Amendment analysis, Florida’s 

stay application to this Court does not raise that First

Amendment issue. Therefore, the Court’s denial of the stay

indicates nothing about our view on whether Florida’s new 

law violates the First Amendment. 

Rather, for purposes of its stay application, Florida 

challenges only the scope of relief ordered by the District 

Court—namely, that the injunction prohibits state 

enforcement of the law not only against Hamburger Mary’s

but also against other entities that are non-parties to this

litigation. To be clear, if this Court, for example, were

ultimately to affirm the District Court’s First Amendment

judgment on the merits, the State could not successfully

enforce this law against anyone, party or not, in light of 

stare decisis. But district court judgments do not have that 

stare decisis effect. And the State here contends that the 

District Court otherwise lacked authority to enjoin the

State from enforcing the law against entities other than 

Hamburger Mary’s. Therefore, the State says that it should

be able to enforce the law against those non-parties during 

the pendency of its appeal.

No federal statute expressly grants district courts the 

power to enter injunctions prohibiting government 

enforcement against non-parties in the circumstances

presented in this case. The question of whether a district 
 

Cite as: 601 U. S. ____ (2023) 3 

Statement of KAVANAUGH, J. 

court, after holding that a law violates the Constitution,

may nonetheless enjoin the government from enforcing that

law against non-parties to the litigation is an important

question that could warrant our review in the future.1 But 

the issue arises here in the context of a First Amendment 

overbreadth challenge, which presents its own doctrinal 

complexities about the scope of relief. This case is therefore 

an imperfect vehicle for considering the general question of

whether a district court may enjoin a government from

enforcing a law against non-parties to the litigation. For 

that reason, the Court is not likely to grant certiorari on

that issue in this particular case.

In sum, because this Court is not likely to grant certiorari

on the only issue presented in Florida’s stay application, it 

is appropriate for the Court to deny the application. 

—————— 1 Importantly, that issue is distinct from the issue of a court’s setting

aside a federal agency’s rule under the Administrative Procedure Act. 

The APA expressly authorizes a court to “hold unlawful and set aside 

agency action” that violates the Act. 5 U. S. C. §706(2); see M. Sohoni, 

The Power To Vacate a Rule, 88 Geo. Wash. L. Rev. 1121, 1173 (2020)

(“The term ‘set aside’ means invalidation—and an invalid rule may not

be applied to anyone” (footnote omitted)). As a leading article explained: 

“Judicial review of agency action presents a different situation because

the Administrative Procedure Act instructs a reviewing court to ‘hold

unlawful and set aside’ agency rules and orders that it deems unlawful 

or unconstitutional.” J. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. 

L. Rev. 933, 1012 (2018). Therefore, “[u]nlike judicial review of statutes, 

in which courts enter judgments and decrees only against litigants, the 

APA . . . go[es] further by empowering the judiciary to act directly 

against the challenged agency action. This statutory power to ‘set aside’

agency action is more than a mere non-enforcement remedy. . . . In these 

situations, the courts do hold the power to ‘strike down’ an agency’s work, 

and the disapproved agency action is treated as though it had never 

happened.” Id., at 1012–1013 (footnote omitted). Of course, if a lower 

court sets aside an agency rule under the APA, the Federal Government 

may promptly seek a stay in the relevant court of appeals or in this Court 

if the Government wants the rule to remain in effect while the appellate 

litigation over the rule’s legality is ongoing.