UPDATE — 02.05.17 @ 9:30 AM EST: Um. . . told ya’! Well, we will wait to see the State of Washington AG’s brief (due on Super Bowl Sunday — at nearly-midnight, Pacific), but I expect now that the Ninth Circuit will (after a Trump answer on Monday) bounce it back to the District Court, without any formal opinion. Smile. . . .
A long fun day, here — so I am just catching up, late at night, to post this: As ever — we shall see, but the reports of the Trump Administration’s appeal of Judge Robart’s federal, nation-wide TRO in Washington state, pending on a purported notice of appeal filed today, Saturday, before the Ninth Circuit. . . may well end up going. . . nowhere, fast. I say this on purely technical legal grounds.
As a general rule of federal civil procedure, appeals may only be taken from final orders. A TEMPORARY restraining order — is by its very nature considered. . . that’s right — temporary, not final. [That is, the TRO simply preserves the prior status quo ante, until the full case is heard — and decided.] The notion is that it is inefficient to allow an appeal at every stage — the right of appeal should be saved only for an actual dispositive final outcome. Here, there are more hearings scheduled, and decisions to be made — on whether there will ever be a preliminary injunction — or a permanent one.
Here is some relevant federal civil case law [from McDougald v. Jenson, 786 F.2d 1465 (1986)] — on the factors the Ninth Circuit Court of Appeals will likely weigh, in deciding whether to accept this so-called interlocutory appeal:
. . . .We conclude that the mother’s appeal from the TRO entered in this case, whether denominated a TRO or a preliminary injunction, is not properly before the court. It is well settled in this circuit that a TRO is not ordinarily appealable. Fernandez-Roque v. Smith, 671 F.2d 426, 429 (11th Cir.1982); Nelson v. Rosenthal, 539 F.2d 1034 (5th Cir.1976); Chandler v. Garrison, 394 F.2d 828 (5th Cir.1967). The mother argues that, because the TRO was in reality a short-lived mandatory injunction commanding her to perform an affirmative act, it is appealable pursuant to 28 U.S.C. Sec. 1292(a)(1). We agree that the label placed on an order such as the one entered in this case is not dispositive of its nature and appealability under section 1292(a)(1). “A district court, if it were able to shield its orders from appellate review merely by designating them as temporary restraining orders, rather than as preliminary injunctions, would have virtually unlimited authority over the parties in an injunctive proceeding.” Sampson v. Murray, 415 U.S. 61, 86-87, 94 S.Ct. 937, 951, 39 L.Ed.2d 166 (1974).
When determining whether to consider an order a TRO or a preliminary injunction, however, courts typically look to such factors as the duration of the order, whether it was issued after notice and a hearing, and the showing made to obtain the order. See C. Wright, Law of Federal Courts 708 (4th ed. 1983). The lengthier the duration of the order, and the more stringent the procedural safeguards employed in the district court, the more likely a TRO will be considered a preliminary injunction. See e.g., Dilworth v. Riner, 343 F.2d 226, 229 (5th Cir.1965). An examination of those considerations in this case strongly suggests that the order entered and labeled a TRO should not be considered a permanent injunction for purposes of this appeal. . . .
Militating in favor of the appealability of the TRO entered in this case, however, is “a slowly emerging doctrine that temporary restraining order rulings may be appealable as interlocutory injunction orders if the appellant can disprove the general presumption that there is no irreparable harm.” 16 C. Wright, A. Miller, E. Cooper and E. Gressman, Federal Practice and Procedure Sec. 3922, at 37 (1977). Thus it has been suggested that “if the TRO goes beyond simply preserving the opportunity to grant affirmative relief and actually grants affirmative relief, an appeal may be taken.” Id. See Adams v. Vance, 570 F.2d 950, 953 (D.C.Cir.1978); Belknap v. Leary, 427 F.2d 496, 498 (2d Cir.1970); Stricklin v. Regents of University of Wisconsin, 420 F.2d 1257, 1259 (7th Cir.1970). . . .
It is well-settled law that a TRO is not ordinarily appealable in the federal courts. So, Mr. Trump must overcome the presumption that returning all parties to the status prior to the morning of January 27, 2017 causes him irreparable harm. That is a hurdle, I predict, he cannot clear. The harm to people banned is palpable — not so, as to the way the world was on January 26, 2017.
No, I predict this will ultimately be decided by an appeal from a permanent injunction against Messrs. Trump’s and Bannon’s defective order. And that is still a few months off. Ultimately, if 45 persists in this vain exercise, it will be decided in the US Supreme Court. And he will lose there — you heard it here, first. [In the end, it will matter little that in Boston, another federal judge allowed the TRO there to expire by its terms, late on Friday (without prejudice) — as largely mooted by the individuals in question being granted the relief they were seeking.]
These are indeed historic times — and 45’s ad hominem belittling of various sitting federal judges (by Tweet) demeans the gravity of his office. Sleep well, one and all — much more, almost certainly, come Monday morning, bright and early, in the Ninth Circuit in San Francisco — not far from where I am sleeping tonight.
A Sunday afternoon observation, as we await the ban opponents’ brief, in the Ninth Circuit: Mr. Trump’s lawyers have claimed that the federal courts are “second-guessing” his “quantum of risk assessments” — embedded in his now-TRO-ed Muslim Ban. Frankly, I don’t care that he (and they) have mis-characterized the argument in this way. After all, the President is not a King. His is an office of powers limited in our form of government — by our Constitution. Whether one calls it second guessing — or preventing an extra-Constitutional power grab — the outcome remains the same: Mr. Trump does not have powers the Constitution does not grant him.
And the Ninth Circuit — and the Supremes, eventually — will so rule. Word.