Department of Justice attorneys announced Friday that they will file a formal notice of appeal of US District Judge Reed O'Connor's preliminary injunction against the Department of Education guidelines aimed at protecting transgender students from discrimination.

According to court documents, the formal notice will occur on or before October 20, which is 60 days after Judge O'Connor's ruling.

DOJ has a number of strong procedural arguments. It will be interesting to see what the 5th Circuit does.

--Ken Upton, Lambda Legal

We look forward to defending [the injunction] on appeal.

Texas appreciates the thoughtful nationwide injunction from the district court that recognized the federal government overstepped its bounds.

--Mark Ryland, spokesman for Texas AG Ken Paxton

Upton said it could be March or April before the 5th Circuit rules on whether to overturn the injunction. But as soon as the notice of appeal has been filed, the DOJ can request that the injunction be placed on hold while the 5th Circuit considers the case — a request that could be granted within weeks. If the DOJ obtains a stay of the injunction, the Obama administration could resume implementing the guidance.

A request for a stay of the injunction would first have to go to O’Connor, who would be likely to deny it, Upton said. But the DOJ could then request a stay from the 5th Circuit and, if necessary, the U.S. Supreme Court.

Given the way the injunction binds the government agencies and DOJ, I think there is a good chance they might get a stay.

--Upton

After O’Connor issued the injunction, DOJ attorneys filed a motion requesting that he clarify its scope. O’Connor heard arguments on the motion September 30 but has not yet ruled. The DOJ had requested that O’Connor do so by October 3.

Upton said he believes Friday’s filing — in which the DOJ announced it plans to file a notice of appeal this week — was intended “to nudge the judge to rule on the clarification motion before their appeal time runs out on October 20.”

I think you could call it a friendly reminder that if he doesn’t rule by Thursday he’s going to lose jurisdiction of the case and it’s going to the 5th Circuit as is.

--Upton