The 9th Circuit just issued an Order denying the State of Hawaii’s Emergency Motion for an Injunction. For details on the motion, see our post earlier today, Hawaii seeks injunction from 9th Circuit to halt Trump application of SCOTUS Travel Ruling.

The Court issued its Order without even waiting for the Trump administration to respond, and was issued by the same panel of Judges as decided the original appeal, which the Supreme Court substantially overrode.

The full 9th Circuit Order (pdf.) is embedded below.

We lack jurisdiction to address Plaintiffs’ appeal of the district court’s order denying the motion to clarify the scope of the injunction. This court possesses jurisdiction to review only final judgments and a limited set of interlocutory orders. See 28 U.S.C. §§ 1291, 1292(a). The district court’s order neither resulted in a final judgment nor engaged in action deemed immediately appealable in 28 U.S.C. § 1292(a). Specifically, the district court’s order did not “grant[], continu[e], modify[], refus[e], or dissolv[e]” an injunction, or “refus[e] to dissolve or modify” an injunction. Id. § 1291(a)(1).

Nor do any of the various judicially-crafted bases for appellate jurisdiction apply under these circumstances. Because the “practical effect” of Plaintiffs’ requested relief is declaratory in nature—not injunctive—we do not construe their clarification motion before the district court as one for injunctive relief.

In other words, because Hawaii framed its request as one for “clarification” it screwed itself procedurally. The District Court refused to “clarify” a Supreme Court Order, and the 9th Circuit found it had no jurisdiction from such a request for clarification.

Finally, we note that although the district court may not have authority to clarify an order of the Supreme Court, it does possess the ability to interpret and enforce the Supreme Court’s order, as well as the authority to enjoin against, for example, a party’s violation of the Supreme Court’s order placing effective limitations on the scope of the district court’s preliminary injunction. Cf. United States v. El-O-Pathic Pharmacy, 192 F.2d 62, 79–80 (9th Cir. 1951). But Plaintiffs’ motion before the district court was clear: it sought clarification of the Supreme Court’s June 26 order, not injunctive relief. Because the district court was not asked to grant injunctive relief or to modify the injunction, we do not fault it for not doing so.

The 9th Circuit dismissed the appeal entirely:

Because we lack jurisdiction to review the district court’s order, this appeal is DISMISSED and Plaintiffs’ “Emergency Motion under FRAP 8 and Circuit Rule 27-3 for Injunction Pending Appeal” is DENIED as moot.

So what will Hawaii do now? Try to get the Supreme Court to take the case? Go back to the District Court with a reframed motion?

[This post has been updated multiple times]


Hawaii v Trump – 9th Circuit Order Denying Post-SCOTUS Emergency Injunction by Legal Insurrection on Scribd


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