Judge won't pause gym reopening order as Whitmer appeals

Craig Mauger
The Detroit News

A federal judge declined Monday to pause his ordered reopening of indoor gyms in Michigan as Gov. Gretchen Whitmer appeals the decision to a higher court.

Whitmer's administration argued for a stay on U.S. District Judge Paul Maloney's injunction allowing gyms to reopen Thursday. But in a ruling, Maloney said he wasn't convinced "that the injunction harms the public interest."

"The focus must be on the prevention of injury, not merely preservation of the status quo," Maloney said.

Thomas Deschamps of Farmington Hills makes his way into Powerhouse Gym in Novi for one last workout a few hours before the public gym and all others in the state of Michigan were closed by an executive order of Gov. Gretchen Whitmer.

Whitmer and Robert Gordon, the director of the Michigan Department of Health and Human Services, are appealing Maloney's ruling from last week to the 6th Circuit U.S. Court of Appeals.

On Friday, an attorney for Whitmer and Gordon argued in district court that the order reopening gyms during the COVID-19 pandemic should be stayed during the appeal.

"In the absence of a stay, a different stay or merits outcome on appeal would potentially cause more disruption and detrimental reliance by plaintiffs and others who would expend resources on only a fleeting lifting of restrictions under the preliminary injunction," said John Fedynsky, an assistant attorney general representing Whitmer and Gordon.

Maloney, an appointee of former President George W. Bush granted a preliminary injunction Friday that halted executive orders requiring the closure of the facilities at the request of the League of Independent Fitness Facilities and Trainers Inc. and a group of 22 companies operating gyms here. Under it, the gyms can reopen Thursday.

"Unfortunately, on the record before it, the court has not been presented with any evidence that shows a rational relation between the continued closure of indoor gyms and the preservation of public health," Maloney said.

Whitmer and Gordon entered a notice of appeal on Friday and argued the court's injunction should have been immediately halted pending the appeal because it "fundamentally alters the status quo" and "imposes substantive restrictions on core public health authority in an ongoing pandemic."

"The idea that gyms — with their high levels of heavy respiratory activity, shared indoor spaces, and shared surfaces — might be one of the later businesses to come back online in the midst of this global pandemic is hardly surprising and highly sensible," Fedynsky said.

As of Monday, Michigan reported 61,409 confirmed cases of COVID-19.

In a response filed Monday, Scott M. Erskine, an attorney for the gyms, said the motion for a stay was primarily "an improper motion for reconsideration."

"Preliminary injunctions are designed to prevent irreparable injury, and if the existing status quo itself is causing one of the parties irreparable injury, it is necessary to alter the situation so as to prevent the injury," Erskine said.