Before BAZELON, Chief Judge, McGOWAN and ROBINSON, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT. 1969.CDC.21
PER CURIAM: The Equal Employment Opportunity Commission, as part of its effort to prevent, inter alia , sex discrimination promulgated what it characterized as "guidelines" controlling reference to sex in want ads. Appellants, an association of newspaper publishers and the Washington Evening Star, brought suit in the District Court to annul the guidelines and sought a preliminary injunction pending a determination of the merits. The District Judge after oral argument, but without hearing testimony on injury, denied the preliminary injunction, and appellants ask this court to summarily reverse that order. The District Judge, however, was subsequently asked to stay the effective date of the guidelines pending the appeal of his order denying the preliminary injunction. That motion was granted without any testimony of irreparable injury being presented or proffered, and the Commissioners of the EEOC seek to have that stay dissolved.
A showing of irreparable injury is a prerequisite for a preliminary injunction or a stay. In this case, such injury appears conjectural, for the District Judge granted appellants at least partial relief by declaring that the guideline in question "does not have the force and effect of law," and binds neither appellants nor the courts. Nor does the EEOC have the power to enforce the disputed guidelines should appellants decide to continue their present method of operations pending a determination on the merits of the case. Appellants, however, claim they will be injured nonetheless by the mere existence of the guidelines, and will be prepared to demonstrate that fact by evidence in a trial on the merits of their complaint, which of course remains pending in the District Court despite the denial of a preliminary injunction.
The District Court balanced the harm likely to be caused the parties in the absence of a preliminary injunction, considered the likelihood of appellant prevailing on the merits, and declined to grant a preliminary injunction. Such a decision is within the discretion of the trial judge, and we cannot say that such an abuse of discretion appears as to warrant summary reversal of that decision. Appellants' motion for summary reversal must accordingly be denied.
Considering the appellants' likelihood of success on this appeal, the seeming remoteness of the injury threatened, and the lack of any testimony on the subject of injury, the stay entered by the District Court is vacated. This is done in reliance on the statement by counsel for appellants at oral argument that he would be ready to go to trial on the merits in short order and would present testimony on injury. As the case appears to us, prompt prosecution of the case on the merits seems more desirable than further efforts devoted to the pending appeal.
This cause came on for hearing on the motion of appellants, American Newspaper Publishers Association, et al., for summary reversal of the order of the District Court denying a preliminary injunction and on the motion of appellants, Clifford L. Alexander, Jr., et al., to vacate the stay of the effective date of the guidelines controlling reference to sex in want ads and the Court heard argument of counsel.
Upon consideration thereof, it is
Ordered by the Court for the reasons set forth in the attached opinion that the aforesaid motion for summary reversal be denied, and the stay entered by the District Court is hereby vacated.