Case: 16-4117 Document: 29-1 Filed: 11/23/2016 Page: 1 Appeal No. 16-4117 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT SUPERINTENDENT WILLIAM DODDS; HIGHLAND LOCAL SCHOOL DISTRICT; PRINCIPAL SHAWN WINKELFOOS; BOARD OF EDUCATION OF THE HIGHLAND LOCAL SCHOOL DISTRICT, v. Third-Party-Defendants Appellants, UNITED STATES DEPARTMENT OF EDUCATION; JOHN B. KING, JR., SECRETARY OF EDUCATION; UNITED STATES DEPARTMENT OF JUSTICE; LORETTA E. LYNCH, UNITED STATES ATTORNEY GENERAL; AND VANITA GUPTA, PRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL, and Defendants, JANE DOE, a minor, by and through her legal guardians JOYCE and JOHN DOE, Intervenor-Third-Party-Plaintiff Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO JANE DOE S MOTION FOR LEAVE TO FILE A SUR-REPLY IN FURTHER OPPOSITION TO THIRD PARTY DEFENDANT- APPELLANTS MOTION TO STAY THE PRELIMINARY INJUNCTION Christopher Stoll Asaf Orr NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market Street, Suite 370 San Francisco, California 94102 (415) 392-6257 Jyotin Hamid Joseph Weissman Derek Wikstrom Jennifer Freeman Mintz DEBEVOISE & PLIMPTON LLP 919 Third Avenue New York, New York 10022 (212) 909-6000
Case: 16-4117 Document: 29-1 Filed: 11/23/2016 Page: 2 cstoll@nclrights.org jhamid@debevoise.com Counsel for Intervenor-Third- Party-Plaintiff Appellee Jane Doe
Case: 16-4117 Document: 29-1 Filed: 11/23/2016 Page: 3 Third-Party Plaintiff-Appellee Jane Doe respectfully moves this Court for an order granting leave to file a sur-reply in response to Third-Party Defendant- Appellants (collectively Highland ) reply brief in order to respond to an argument that Highland raised for the first time in its reply brief. See Fed. R. App. P. 27(a)(4) ( A reply must not present matters that do not relate to the response ); Eng g & Mfg. Servs., LLC v. Ashton, 387 F. App x 575, 583 (6th Cir. 2010) (reversing district court s denial of motion for leave to file sur-reply where defendant presented new arguments in reply brief). This Court has good cause to grant Jane s motion. As set forth in Jane Doe s proposed sur-reply, attached hereto, Highland raised for the first time in its reply brief on its motion for a stay before this Court that the District Court erred in failing to hold an evidentiary hearing on the issue of whether Jane Doe suffered irreparable harm. This new argument is particularly surprising in light of the fact that Highland submitted a brief to the District Court in which it affirmed that an evidentiary hearing was unnecessary to resolve Jane Doe s claims of irreparable harm. Jane Doe s proposed sur-reply is three pages long, and addresses only an issue that Highland raised for the first time in its reply. Jane s ability to respond to the new arguments would otherwise be vitiated. 1
Case: 16-4117 Document: 29-1 Filed: 11/23/2016 Page: 4 sur-reply. CONCLUSION For the foregoing reasons, the Court should grant Jane Doe s motion to file a Dated: November 23, 2016 Respectfully submitted, /s/ Jyotin Hamid Jyotin Hamid Joseph Weissman Derek Wikstrom Jennifer Freeman Mintz DEBEVOISE & PLIMPTON LLP 919 Third Avenue New York, New York 10022 (212) 909-6000 jhamid@debevoise.com Christopher Stoll Asaf Orr NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market Street, Suite 370 San Francisco, California 94102 (415) 392-6257 cstoll@nclrights.org Counsel for Jane Doe 2
Case: 16-4117 Document: 29-1 Filed: 11/23/2016 Page: 5 CERTIFICATE OF SERVICE I hereby certify that on November 23, 2016, all counsel of record who are deemed to have consented to electronic service are being served with a copy of the foregoing instrument via the Court s CM/ECF filing system. /s/ Jyotin Hamid Jyotin Hamid Joseph Weissman Derek Wikstrom Jennifer Freeman Mintz DEBEVOISE & PLIMPTON LLP 919 Third Avenue New York, New York 10022 (212) 909-6000 jhamid@debevoise.com Christopher Stoll Asaf Orr NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market Street, Suite 370 San Francisco, California 94102 (415) 392-6257 cstoll@nclrights.org Counsel for Jane Doe 3
Case: 16-4117 Document: 29-2 Filed: 11/23/2016 Page: 1 Appeal No. 16-4117 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT SUPERINTENDENT WILLIAM DODDS; HIGHLAND LOCAL SCHOOL DISTRICT; PRINCIPAL SHAWN WINKELFOOS; BOARD OF EDUCATION OF THE HIGHLAND LOCAL SCHOOL DISTRICT, v. Third-Party-Defendants Appellants, UNITED STATES DEPARTMENT OF EDUCATION; JOHN B. KING, JR., SECRETARY OF EDUCATION; UNITED STATES DEPARTMENT OF JUSTICE; LORETTA E. LYNCH, UNITED STATES ATTORNEY GENERAL; AND VANITA GUPTA, PRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL, and Defendants, JANE DOE, a minor, by and through her legal guardians JOYCE and JOHN DOE, Intervenor-Third-Party-Plaintiff Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO JANE DOE S PROPOSED SUR-REPLY IN OPPOSITION TO MOTION TO STAY PRELIMINARY INJUNCTION Christopher Stoll Asaf Orr NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market Street, Suite 370 San Francisco, California 94102 Jyotin Hamid Joseph Weissman Derek Wikstrom Jennifer Freeman Mintz DEBEVOISE & PLIMPTON LLP 919 Third Avenue
Case: 16-4117 Document: 29-2 Filed: 11/23/2016 Page: 2 (415) 392-6257 cstoll@nclrights.org New York, New York 10022 (212) 909-6000 jhamid@debevoise.com Counsel for Intervenor-Third- Party-Plaintiff Appellee Jane Doe
Case: 16-4117 Document: 29-2 Filed: 11/23/2016 Page: 3 Jane Doe respectfully submits this sur-reply in further opposition to Third- Party Defendants Appellants (collectively, Highland ) Motion to Stay the Preliminary Injunction, and specifically in response to an argument first raised in Highland s Reply Memorandum of Law. R.E. 28. 1 ARGUMENT Before the District Court, Highland submitted a brief agreeing that an evidentiary hearing was unnecessary, and conceding that the Court could find that Jane had established irreparable harm without holding such a hearing. Dkt. 79. Now, in its reply brief before this Court, Highland argues that the District Court s failure to conduct an evidentiary hearing militates in favor of reversal. R.E. 28 at 10 ( [T]he District Court based its findings on a slim set of affidavits without adjudging the credibility of witnesses. ). This argument was not preserved below and should be given no weight here. Highland has not previously raised the absence of an evidentiary hearing or impugned the factual record due to the lack of an evidentiary hearing. Issues not presented to the district court but raised for the first time on appeal are not properly before the court. J.C. Wyckoff & Assocs. v. 1 Documents filed in this Court are cited as R.E. #. Documents that are available on the District Court docket are cited as Dkt. #. 1
Case: 16-4117 Document: 29-2 Filed: 11/23/2016 Page: 4 Standard Fire Ins. Co., 936 F.2d 1474, 1488 (6th Cir. 1991) (citing Boone Coal & Timber Co. v. Polan, 787 F.2d 1056, 1064 (6th Cir. 1986)). After a status conference regarding the potential need for an evidentiary hearing before the District Court, Highland submitted a brief responding to Jane Doe s Memorandum in Opposition to an Evidentiary Hearing. Dkts. 75, 79. In that response, Highland agreed with Jane that no evidentiary hearing was necessary, stating that In fact, the question of irreparable harm is a purely objective and legal one that focuses on whether the remedies available at law, such as monetary damages, are inadequate to compensate Doe s alleged injury. That is clearly the issue here, where Doe insists on future access to specific facilities, which is obviously amenable to injunctive relief. Dkt. 79 at 6 (quotation marks and citation omitted). In that same brief, Highland agreed that Jane needed to demonstrate a likelihood of success on the merits and draw a strong parallel between the facts of this case and those of reasonably comparable cases. Dkt. 79 at 6. It concluded that This inquiry is legal in nature and does not call for an evidentiary hearing in any respect. Dkt. 79 at 7. The District Court agreed with both Jane and Highland that no evidentiary hearing was necessary, holding that irreparable harm is presumed when a moving party shows that a constitutional right is being 2
Case: 16-4117 Document: 29-2 Filed: 11/23/2016 Page: 5 threatened and that the issue of irreparable harm before the Court on Jane s motion was an objective question of law. Dkt. 80 at 3. Highland s sudden reversal of course in its reply brief is improper. Here, Highland s District Court brief affirming that no evidentiary hearing was necessary for Jane Doe to prevail on either her Title IX or Equal Protection claims precludes it from now arguing that such a hearing was necessary. Accordingly, this Court should not consider Highland s arguments that the District Court erred in evaluating the evidence in connection with Highland s motion for a stay of the preliminary injunction. CONCLUSION Jane Doe respectfully requests that the Court deny the motion for a stay of the preliminary injunction. Dated: November 23, 2016 Respectfully submitted, /s/ Jyotin Hamid Jyotin Hamid Joseph Weissman Derek Wikstrom Jennifer Freeman Mintz DEBEVOISE & PLIMPTON LLP 919 Third Avenue New York, New York 10022 (212) 909-6000 jhamid@debevoise.com Christopher Stoll Asaf Orr 3
Case: 16-4117 Document: 29-2 Filed: 11/23/2016 Page: 6 NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market Street, Suite 370 San Francisco, California 94102 (415) 392-6257 cstoll@nclrights.org Counsel for Jane Doe 4