Griffin v. HM Florida-Orl, LLC

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1 Cite as: 601 U. S. ____ (2023)
Statement of K
AVANAUGH, 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.
J
USTICE THOMAS, JUSTICE ALITO, and JUSTICE GORSUCH
would grant the application for stay.
Statement of J
USTICE 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 K
AVANAUGH, 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) (K
AVANAUGH, 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

3 Cite as: 601 U. S. ____ (2023)
Statement of K
AVANAUGH, 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.