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Friday, February 10, 2017

The process of challenging the travel order

The litigation in Washington v. Trump has become politically confused following Thursday's decision by the Ninth Circuit.

The district court issued a Temporary Restraining Order; while it was entered following an adversary hearing, it was on light briefing and without an evidentiary hearing. It was designed to maintain the status quo until there could be briefing and a an evidentiary hearing on a preliminary injunction, although the briefing schedule was set so that the TRO would last more than the 14 days allowed by FRCP 65(b)(2), although not substantially more than that. The order was, as many have noted, bare-bones and conclusory in the constitutional analysis, as befits a TRO.

The United States appealed, although it was not clear what or how. TROs are not subject to immediate appeal, although preliminary injunctions are. The purpose of the appeal appears to have been to get the Ninth Circuit to stay the district court order.

The Ninth Circuit panel recast the TRO as a PI (pursuant to Ninth Circuit precedent allowing the court of appeals to look through the label), granting it appellate jurisdiction, then denied the stay pending appeal. The Ninth Circuit has set a briefing schedule for the appeal (running into March), so we are done at the district court, at least at the preliminary injunction stage. At the same time, the panel left open the possibility that the merits panel could revisit the issue, decide this is really a TRO and that there is no appellate jurisdiction, kicking it back to the district court for the evidentiary hearing it was trying to hold.  There also is the possibility that the Ninth Circuit panel will decide that it cannot review the decision without an evidentiary record and remand for that hearing.

So consider where this leaves us: The case is in the Ninth Circuit to review a bare-bones order, entered without an evidentiary hearing and without giving an opportunity for an evidentiary hearing. This means, as described by one professor on the Civ Pro Listserv, the appeal will be nothing more than a replay of the stay motion with longer and more drawn-out briefing (and with the burden of persuasion shifted to the State), but with nothing more in the record to review. This reflects an insight Samuel Bray has made in his work criticizing nationwide injunctions--if the courts see their role as deciding whether to "strike down" a statute, then the narrow, party-specific work in the district court becomes less important. And litigants may view it that way, as well.

It did not have to proceed this way. The United States could have instead sought a Writ of Mandamus, which would have allowed the Ninth Circuit to look at the TRO to determine whether it was egregiously wrong, without being a run-of-the-mill appeal. And it could have done that without having to manufacture appellate jurisdiction, review a cursory order entered without a full record, or waste time remanding to obtain that full record. But the U.S. seemed so anxious to be able to enforce the E.O. pendent lite that it blew through many of these details.

A nice question to consider: Where did the decision to pursue the appeal in this way come from? At the time, there was no AG and no SG. So did the instructions and oversight come from the White House?

Posted by Howard Wasserman on February 10, 2017 at 10:17 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


As you've pointed out, this is simply a hash: You would expect the review of a PI (under abuse of discretion standard) or final permanent injunction (with determination of a stay pending appeal using the standard that was applied by the Ninth Circuit). But instead we now have to deal with the appeal: we haven't gotten to the merits in the district court, there is no real evidence to consider -- how would the merits appeal at the Ninth Circuit even work? Is the Ninth Circuit going to preside over a trial?? I can see the law clerks going nuts.

Anyways, I realize that this is not breaking news for you.

Posted by: R. Jack | Feb 14, 2017 12:52:11 AM

It will, when (if) it decides the merits. The first decision was only about whether to stay the district court order while the appeal is briefed. The court has now set a briefing schedule for the actual appeal of the actual order. That is, if there is no en banc, no attempt to go to SCOTUS, no withdrawal of the appeal, and no new EO.

Plus, the decision left open the (unlikely) possibility that the merits panel could decide that it was really a TRO and dismiss for lack of appellate jurisdiction

Posted by: Howard Wasserman | Feb 13, 2017 5:41:42 AM

Your explanation makes sense, Howard. Thanks. But I still don't get why the 9th Circuit didn't consistently treat the TRO as a PI (as it started to do to make it reviewable) and place the burden of persuasion on the person who sought and received the PI.

Posted by: R. Jack | Feb 13, 2017 2:14:45 AM

But only because that was the only way it had appellate jurisdiction to decide whether to issue a stay pending appeal. If the order was a TRO, the 9th Cir had no appellate jurisdiction and thus no jurisdiction to to issue a stay. So it had to treat the TRO as a PI to establish appellate jurisdiction, in which case it could decide whether to stay the DCt order pending the full review of its appellate jurisdiction.

The stated standard for stays, TRO, Prelim Inj, and Perm Inj are all basically the same. The showing necessary varies (more is required the further along you get). And the stay places the burden of persuasion on the party seeking the stay (the DCt loser).

Posted by: Howard Wasserman | Feb 12, 2017 11:58:55 AM

Howard: The standard for review that was used by the panel is one applied to the review of a final decision on the merits, rather than to the review of a PI. The case cited by the panel for the standard of review referred to a permanent injunction by the lower court. The panel also clearly stated, though, that it was treating the TRO as a reviewable PI.

Posted by: R. Jack | Feb 12, 2017 11:53:46 AM

The Ninth Circuit was deciding only whether to stay the district court order pending appeal. The burden therefore was on the US, as the loser in the lower court, to show likelihood of success on appeal. The court was not reviewing anything the district court did.

Posted by: Howard Wasserman | Feb 11, 2017 6:11:57 AM

As I understand it, the Ninth circuit treated the district court's decision to grant a TRO as a reviewable preliminary injunction. (Washington v. Trump (9th Cir., Feb. 9, 2017, No. 17-35105) (noting that a TRO is not ordinarily reviewable but here "should be considered to have the qualities of a reviewable preliminary injunction.")

The standard for review of a PI is generally abuse of discretion, or de novo for legal questions.

But from a reading of the decision, it looks like the 9th Circuit decision required the government to meet the standards for a PI in deciding whether to overturn the TRO. As the Court noted: "To rule on the Government's motion, we must consider several factors, including whether the Government has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay." (Washington v. Trump (9th Cir., Feb. 9, 2017, No. 17-35105))

Seems strange.

Posted by: R. Jack | Feb 11, 2017 3:25:36 AM

It is not clear what the panel will be and I do not know the local rules. Conversations with law profs have suggested that a motions panel can choose to keep a case under some circumstances.

I have been convinced that the court could do what you initially suggested, not pursuant to any rules, but pursuant to its own discretion. We know, for example, that after briefing and appeal, a court can remand for a fuller record. In its discretion, it could do that right now, as well.

Posted by: Howard Wasserman | Feb 10, 2017 4:10:39 PM

You're correct. I had seen the Motion for Stay, but not the NOA. And you are also likely correct that the appeal won't differ greatly from the decision on the stay given the limited record (which makes us question why we do this twice).

Do you expect the rest of the appeal to be heard by the same judges? Were the judges on the stay decision only the motions panel? According to the local rules, it appears that judges are appointed to the motions panel for a one-month rotation and that judges are appointed to merits panels randomly. With one exception - a case heard by the Court on a prior appeal may be set before the same panel upon a later appeal. Not sure if that covers prior motions also. Other Circuits have clearer rules that judges on the motions panel will also likely hear the merits.

Posted by: Jill Lens | Feb 10, 2017 2:56:37 PM

I don't think the court of appeals can do that. The notice of appeal gave the Ninth Circuit jurisdiction and the stay request was only pending review (the court of appeals cannot stay the district court order while the case is pending in the district court, except perhaps through mandamus).

Another possibility someone suggested is that the US might withdraw its appeal, returning the case to the district court.

Posted by: Howard Wasserman | Feb 10, 2017 12:10:37 PM

I had not seen the Ninth Circuit's briefing schedule sending the appeal to a merits panel. Was that required because of the government's choice in how to appeal? Better asked, could the Ninth Circuit have sent it back down to the district court to decide the preliminary injunction? That it what I assumed would happen and had been reported. But now I see, as you point out, that the Ninth Circuit set a briefing schedule. I don't understand why the Ninth Circuit would have sent this to a merits panel when this motions panel even admits the limited record that currently exists.

Posted by: Jill Lens | Feb 10, 2017 11:29:43 AM

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