Tohono O'Odham Nation v. Mullin

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) TOHONO O'ODHAM NATION, ) ) Plaintiff, ) ) Civil Case No. 26-2127 (RJL) V. ) ) MARK.WAYNE MULLIN, et al., ) ) Defendants. ) _ _ _ __ _ __ _ __ ) MEMORANDUM ORDER t i\ October __L, 2026 [Dkt. #50] On August 14, 2026, I denied plaintiff Tohono O'odham Nation's motion for a preliminary injunction to halt border wall construction. See Mem. Op. [Dkt. #45]. Plaintiff's appeal of my ruling is now pending before our Circuit Court. See Notice of Appeal [Dkt. #48]. In the meantime, plaintiff has moved for an injunction pending appeal under Federal Rule of Civil Procedure 62(d) and Federal Rule of Appellate Procedure 8(a)(l)(C). Mot. of the Tohono O'odham Nation for Inj. Pending Appeal ("Mot.") [Dkt. #50]. For the following reasons, plaintiff's motion for an injunction pending appeal is DENIED. BACKGROUND My opinion denying plaintiff's motion for a preliminary injunction recounts the factual and procedural background of this case. See Mem. Op. at 2-5. Most relevant here, 1 the Government has represented that construction activities on the border wall alongside plaintiff's Reservation will start, at the earliest, on October 12, 2026. Id. at 5. Our Circuit granted plaintiff's motion for expedited briefing on appeal; briefing will conclude on October 21, 2026, and oral argument will take place in December 2026. See Order, Tohono O'odham Nation v. Mullin, No. 26-5306 (D.C. Cir. filed Sept. 9, 2026), Doc. #2192131. Plaintiff has moved this Court for an injunction halting border wall construction until the resolution of the appeal. See Mot. The Government opposes. See Defs.' Resp. in Opp'n to Pl.'s Mot. for Inj. Pending Appeal [Dkt. #53]. On September 17, 2026, plaintiff filed its reply. See Reply Mem. of the Tohono O'odham Nation in Supp. ofits Mot. for Inj. Pending Appeal [Dkt. #59]. The motion is now ripe. On October 5, 2026, plaintiff moved for an injunction pending appeal-the same relief it seeks here-before our Circuit Court pursuant to D.C. Circuit Rule 27(e). See Notice of Related Filing [Dkt. #61]; see also Suppl. Notice [Dkt. #62]. LEGAL STANDARD To obtain an injunction pending appeal under Federal Rule of Civil Procedure 62( d), the Court applies the "same four-factor test applicable to all injunction motions." MediNatura, Inc. v. Food & Drug Admin., 2021 WL 1025835, at *4 (D.D.C. Mar. 16, 2021). The moving party "must establish [I] that [it] is likely to succeed on the merits, [2] that [it] is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in [its] favor, and [4] that an injunction is in the public interest." Id. (quoting Winter v. Nat. Res. Def Council, Inc., 555 U.S. 7, 20 (2008)). Several of my colleagues have applied a "more flexible" version of the four-factor 2 test to a motion for an injunction pending appeal because "the express language of Rule 62( d) contemplates the possibility that the district court may grant an injunction pending appeal from an interlocutory order denying preliminary injunction." MediNatura, Inc., 2021 WL 1025835, at *6 (alterations incorporated) (quoting Am. Beverage Ass 'n v. City & Cnty. of San Francisco, 2016 WL 9184999, at *2 (N.D. Cal. June 7, 2016)); see also Heritage Found. v. Dep 't ofJust., 2026 WL 1770708, at * 1 (D.D.C. June 19, 2026). "[l]n rare cases, the threat of irreparable harm may be so grave and the balance of equities may favor the movant so decisively that an injunction pending appeal may be proper, even without a likelihood of success on the merits, so long as the movant at least establishes a serious legal question on the merits and shows that the other three factors tip sharply in its favor." Perlmutter v. Blanche, 2025 WL 2409755, at *1 (D.D.C. Aug. 20, 2025) (cleaned up). ANALYSIS If the analysis for an injunction pending appeal is identical to the preliminary injunction analysis under Federal Rule of Civil Procedure 65, plaintiff has not identified any reason for reconsidering my conclusion that all four factors favor the Government. See generally Mem. Op. Even assuming that a more "flexible" standard applies, plaintiff has failed to carry its burden of showing an entitlement to the "extraordinary remedy" of an "affirmative injunction against a defendant." MediNatura, Inc., 2021 WL 1025835, at *6. On the likelihood of success on the merits, while the legal issues identified by the plaintiff are indeed "novel," Tr. of Mot. Hr'g [Dkt. #43] at 32:19, I do not find that plaintiff has 3 established "serious legal question[s]" warranting an injunction pending appeal, Perlmutter, 2025 WL 2409755, at * 1. Succeeding on plaintiff's trespass claim necessarily would require the Court to expand the Larson-Dugan exception to common law tort claims outside of the context of the common law right of public access. See Mem. Op. at 15. And plaintiff's ultra vires claim would require the Court to find that construction of a border wall has the legal effect of diminishing the boundaries of plaintiff's Reservation- something no court has yet held. See id. at 13. Lack of likelihood of success on the merits warrants denying plaintiff's motion. See Appalachian Voices v. U.S. Env 't Prot. Agency, 2025 WL 2732746, at *2 (D.D.C. Sept. 25, 2025) (denying motion for injunction pending appeal where plaintiff failed to show a likelihood of success on the merits); Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs, 205 F. Supp. 3d 4, 26 (D.D.C. 2016) ("[T]he Court may deny a motion for preliminary injunction, without further inquiry, upon finding that a plaintiff is unable to show either irreparable injury or a likelihood of success on the merits."). The remaining Winter factors do not favor plaintiff "so decisively" that an injunction pending appeal is proper. Perlmutter, 2025 WL 2409755, at *1. The Government has identified serious national security and public safety concerns at the international border. See Mem. Op. at 2, 17-18. An injunction pending appeal is "an intrusion into the ordinary process of administration and judicial review and accordingly is not a matter of right, even if irreparable injury might otherwise result to the [movant]." Memphis Publ'g Co. v. Fed. Bureau of Investigation, 195 F. Supp. 3d 1, 3 (D.D.C. 2012) (ellipses omitted) (quoting Nken v. Holder, 556 U.S. 418,427 (2009)). While plaintiff has identified weighty interests 4 at stake in this case, I see no compelling reason to revisit my conclusion that the balance of equities and public interest favor the Government at this juncture. See Mem. Op. at 16- 18. CONCLUSION For the foregoing reasons, it is hereby ORDERED that plaintiff's Motion for an Injunction Pending Appeal [Dkt. #50] is DENIED. SO ORDERED. RICHRD J. LEON United States District Judge 5