In a decision issued yesterday by Chief Judge James Boasberg (D.D.C.) in World Professional Association for Transgender Health v. FTC, the court addressed the request for a temporary restraining order.
Relief of this kind requires an extraordinary showing. After accelerated briefing and a hearing held yesterday, the court concludes that World Professional Association for Transgender Health has not demonstrated the necessary extraordinary showing to justify a temporary restraining order blocking the Federal Trade Commission’s enforcement action in a different forum. Consequently, WPATH’s Motion for a Temporary Restraining Order is denied.
To obtain a TRO under Federal Rule of Civil Procedure 65(b), a movant must show four things: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm in the absence of preliminary relief; (3) that the balance of equities favors the movant; and (4) that the order would serve the public interest.
Earlier this year, WPATH filed suit in this Court against the FTC, alleging that the Commission’s investigative efforts violated its First Amendment rights. In that action, the Court, in May, partially granted WPATH’s Motion for a Preliminary Injunction, halting the implementation or enforcement of the Civil Investigative Demand that the FTC served on WPATH seeking a broad set of internal records. The Court found that WPATH was likely to succeed on the merits that the CID was issued in retaliation for WPATH’s constitutionally protected speech and that it would suffer irreparable harm without preliminary relief. The Court, however, did not grant broader relief, limiting its ruling to the circumstances surrounding the specific CID before it.
Subsequently, the FTC and several states filed a separate enforcement action against WPATH in the Northern District of Texas. They allege violations of the FTC Act’s prohibitions on unfair or deceptive trade practices and false advertising. WPATH returned to this Court seeking a TRO to bar the FTC from pursuing the Texas litigation. The plaintiff contends that the Texas suit concerns the exact same subject matter as its pre-enforcement challenge here and would frustrate the pre-existing preliminary injunction. It seeks an anti-suit injunction directing the FTC to proceed in this Court rather than in the Northern District of Texas.
One basis for emergency relief is WPATH’s claim that pausing the FTC’s progress in Texas is necessary to safeguard this Court’s jurisdiction over its prior injunction. The D.C. Circuit has stated that anti-suit injunctions aimed at protecting the ordering court’s own jurisdiction are easier to justify than those whose sole purpose is to extinguish another court’s jurisdiction. When a movant can show that an anti-suit injunction is needed to preserve the court’s jurisdiction, emergency relief may be warranted.
WPATH has not shown such a threat. The Court sees no risk that the separate Texas litigation would derail the injunction it has already issued. Whatever the parties call the Texas action, it is not an attempt to enforce the CID, which the FTC has withdrawn. And, as noted above, the Court’s ruling was limited to the CID itself.
WPATH notes that the FTC’s Texas suit challenges certain of its statements that resemble the “Covered Statements” referenced in the CID, potentially allowing Texas discovery of the same information. But the injunction protected only compliance with the CID that the Court found likely retaliatory; it did not shield WPATH from all information requests. The Court retains authority to consider future issues raised by any party. Accordingly, there is no threat to this Court’s jurisdiction from actions in another court.
WPATH’s other justification for emergency relief—arguing that the Texas proceedings are duplicative of litigation here—seeks an anti-suit injunction where no jurisdictional issue exists. A truly compelling showing would be required to justify interrupting proceedings in a coordinate district on an emergency basis with abbreviated briefing and consideration.
WPATH has not made such a showing. The Court doubts that Rule 13(a)—which requires related claims to be brought as compulsory counterclaims in a single suit—or the policy against duplicative litigation applies to government actions enforcing the law. Several courts have held that a plaintiff who files a pre-enforcement challenge to stop the FTC from obtaining information cannot then compel the Commission to bring later enforcement actions as compulsory counterclaims in the plaintiff’s chosen forum.
As noted during yesterday’s hearing, tying an FTC action to pre-enforcement-investigation challenges risks allowing plaintiffs to select the forum and pace of litigation simply by filing pre-enforcement actions. Courts have been reluctant to compel government agencies to comply with a counterclaim requirement that would shorten their investigative timelines and force hastier litigation decisions. The court is not prepared to conclude that an action involving rights under a Congress-m mandated enforcement scheme resembles a private dispute between parties that should be consolidated in a single forum and resolved promptly. And before any court disrupts another court’s jurisdiction, the decision must rest on solid ground.
The court’s conclusion that immediate action is unwarranted is reinforced by WPATH’s failure to show irreparable harm. A temporary restraining order is an emergency procedure appropriate only when the applicant needs immediate relief, and the harm must be substantial in its impact and certain in its occurrence to justify preemptive action before the merits are fully determined.
WPATH points to two harms: infringement of its First Amendment rights due to the Texas action and the costs of litigating two separate cases. To establish the first, however, the court would have to deem mere exposure to a Texas suit as a First Amendment violation, otherwise no harm would follow.
While WPATH anchors its argument on the May decision, that ruling applied only to the facts before it: the lack of justification for the broad CID. The Court did not assume that every future FTC action would be retaliatory, and its role is not to do so now. Without such a ruling, WPATH faces only the standard obligation to litigate after a government agency brings a claim—i.e., no irreparable harm at this stage.
Nor does the burden of maintaining two suits justify emergency relief. The dual litigation is certainly burdensome for WPATH. Yet preliminary relief requires a showing of substantial monetary harm. The cost and disruption of defending in protracted proceedings are not, in themselves, irreparable harm. Nor has the litigation here progressed to the point where Texas proceedings would amount to a vexatious relitigation of issues already decided. As the court noted during the hearing, WPATH remains free to cite this Court’s prior opinion in any effort to resist discovery in the Texas action….
John Bailey and Daniel F. Mummolo (DOJ-Civ) and Alex Potapov, Ethan D. Beck, Jonathan Abraham Cohen, and Ross Cooper Vaughan (FTC) represent defendants.
