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9th Circuit DENIES Hawaii request for Emergency Injunction over Trump Travel Order

9th Circuit DENIES Hawaii request for Emergency Injunction over Trump Travel Order

Dismisses appeal for lack of jurisdiction over Hawaii’s request for “clarification” of a Supreme Court Order.

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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    Tom Servo in reply to Exiliado. | July 8, 2017 at 8:02 am

    Thought about this overnight, and now I suspect there was a somewhat
    different expectation on the part of the Hawaii AG than we’ve been speculating. Recall that the first time he filed, he could count on extremely compliant Judges in the District Court and in the 9th and in the District Court who he knew would bend over backwards to oppose Trump, no matter what the law actually was.

    I think he had ever expectation that this would happen again, and was shocked that the Justices actually took the Supreme Court seriously and wouldn’t go any farther in what was now clearly a partisan political fight.

    This rankly partisan AG’s next job will probably be as a host on CNN.

That was quick!

DINORightMarie | July 7, 2017 at 7:12 pm

Woohoo! Like the broken clock, the 9th Circuit got it right, this time around.

Thanks for being on top of this!!

Is it time for the Government to seek a contempt citation against Hawaii Attorney General Doug Chin? Asking a lower Court to overrule SCOTUS is very problematic and disrespectful.

    Milhouse in reply to countrylaw. | July 7, 2017 at 7:22 pm

    He did no such thing. Therefore your suggestion is silly.

      clerk in reply to Milhouse. | July 7, 2017 at 7:36 pm

      You are an insulting little homonculus. You can make your points without being rude.

      And yes, Chin could be cited for contempt. Chin filed a thinly veiled motion to “clarify” that in effect asked a lower Court to overrule SCOTUS. The lower Court directed Chin to SCOTUS. Chin then went to the Ninth Circuit. It is behavior that could result in a contempt citation.

        Milhouse in reply to clerk. | July 7, 2017 at 8:11 pm

        Excuse me, I’m rude?! Who’s going around calling people names? I wrote nothing at all rude. countrylaw made a false statement and a very silly suggestion and I pointed it out.

        Chin did not ask the court to override SCOTUS, and it is a damned lie to claim that he did. Moving to have him held in contempt would be so frivolous that it would be contemptuous in its own right.

          Anonamom in reply to Milhouse. | July 7, 2017 at 8:36 pm

          Yes, you’re rude. Repeatedly and habitually.

          Tom Servo in reply to Milhouse. | July 7, 2017 at 10:09 pm

          “Homonculous”, LOL. I’ve noticed over the last couple of years, every time someone on the far left writes a Cris de Couer about Scott Walker, they have to throw that word in. (In the 30 years before that I’d only seen it used in a Dr. Who episode) Obviously the Current and Trendy Insult Style Guide has added that one. So, you’re in good company.

        CAR in reply to clerk. | July 8, 2017 at 12:02 am

        I just want to speak up for Homunculus, the character in Goethe’s Faust Part 2. He is a fascinating and in many respects admirable character. I don’t recall him ever being insulting or rude.

      sidebar in reply to Milhouse. | July 7, 2017 at 7:44 pm

      I don’t know where you practice law Milhouse. But in the United States Courts “Contempt of court is defined as any act which is calculated to embarrass, hinder, or obstruct a court in the administration of justice, or which is calculated to lessen the authority or dignity of a court.”

      So yes, the Government can file a non-trivial contempt motion against Chin. Arguably he tried to lessen the authority of the Supreme Court of the United States. As a practical matter, other considerations make it unlikely that such a motion would be successful. But one could craft a legally reasonable contempt motion against Chin.

        Milhouse in reply to sidebar. | July 7, 2017 at 8:12 pm

        Arguably he tried to lessen the authority of the Supreme Court of the United States.

        No, that is not arguable. It is frivolous.

          sidebar in reply to Milhouse. | July 7, 2017 at 8:40 pm

          Well thank you “Mr. Justice Milhouse”. You pedantic putz. You like Mr. Chin can be counted on to double down on stupid. You are habitually rude and needlessly provocative.

          Are you a practicing attorney?

        Close The Fed in reply to sidebar. | July 8, 2017 at 11:57 am

        Dear Sidebar:
        There are at least two routes in federal courts for parties to pay the attorney’s fees for the opposite party when they file frivolous appeals, claims, defenses, etc.

        I can’t remember the rule and the statute, but they’re there.
        Contempt is not the only tool at hand.

      dystopia in reply to Milhouse. | July 7, 2017 at 7:46 pm

      Buddy, you have a bad case of foot in mouth disease. Seek treatment.

      Arminius in reply to Milhouse. | July 8, 2017 at 9:36 pm

      Here’s a thought which I doubt you’ll consider.

      Stop automatically calling people liars.

      You can of course call their beliefs into question. But the fact that someone wrongly believes something does not make them liars.

      Semper Why in reply to Milhouse. | July 9, 2017 at 9:17 pm

      I really don’t quite understand why people have such a hostile reaction to you. In my experience, you point out where people are incorrect on the law or upon principle. You and I probably disagree on politics. But it is my observation that you consistently bring up inconvenient legal truths to any discussion.

      As much as I want my “side” to be successful in both politics and the courtroom, you are to my amateur mind correct more often then you are wrong. It’s frustrating. It’s annoying. It’s a welcome brake upon the hyperbole of this comment area. But it baffles me why people hate you for pointing out flaws in legal reasoning.

So who is Hawaii going to appeal to next? Judge Judy?

Only a fool would ask for the relief contained in Hawaii’s motions. Only a bigger fool would grant such relief in direct defiance of SCOTUS.

    clintack in reply to dystopia. | July 7, 2017 at 7:57 pm

    A fool or someone who’s running for a higher office in a very Democratic electorate — say a state-wide office in Hawaii. They’re electing both a governor and a senator in 2018. Want to bet that the AG is looking to take one of those jobs?

Next step will be to wait for someone with a US grandparent, aunt, etc. to be turned down, and have them sue for the district court’s injunction, as modified by the supreme court, to be enforced.

    tarheelkate in reply to Milhouse. | July 8, 2017 at 8:04 am

    Don’t give them ideas … although somebody is probably already on the lookout for a “suitable” situation to file another legal action. These people seldom give up.

      rdmdawg in reply to tarheelkate. | July 8, 2017 at 9:27 am

      The ‘bona fide relationship’ loophole is big enough to drive a Mack truck through, you now can bring in *anyone* you have a relationship with, even by marraige. This is how one of the San Bernadino attackers was permitted entry. A little math shows that in a very short time, you could end up having to allow an entire nation to migrate to the US.

        SDN in reply to rdmdawg. | July 8, 2017 at 9:45 am

        Well, if you read the SCOTUS decision, that’s not true. They set some definite limits.

          Close The Fed in reply to SDN. | July 8, 2017 at 11:58 am

          Yeah, they allowed those engaged in.
          So the San Bernadino killer would be allowed in.
          Blood on SCOTUS.

          rdmdawg in reply to SDN. | July 8, 2017 at 1:27 pm

          Yeah, those ‘definite limits’ include parents, children, siblings, and spouses. Following these out, you can get most people in Syria to move here very quickly.

          Ragspierre in reply to SDN. | July 8, 2017 at 9:29 pm

          “So the San Bernadino killer would be allowed in.”

          T-rump’s EO would certainly let her in.

          It wouldn’t touch her, since she was not coming for any targeted nation.

Is there an ethics issue here?
IANAL, but it seems to me that Hawaii AG went at it for no legitimate reason, and with no chance of prevailing, only to obstruct.

Sanity begins to return.

Notice what changed that made this happen: Gorsuch was confirmed.

    Semper Why in reply to clintack. | July 9, 2017 at 9:24 pm

    Eh, I don’t think so. The decision by SCOTUS was unanimous, was it not? Do you think Gorsuch made it unanimous?

    Instead, I think it was the usual 9th circuit hijinks. They once again discovered that SCOTUS and the rest of the country aren’t as lefty as they are. The rest of the 9th circuit got the message. Hawaii either didn’t understand that, or believes that the local benefit is worth the professional hit to their reputation.

I never realized the 9th Circuit was actually capable of crafting legal arguments by citing specific laws. They have always let their feelings guide them to a desired, politically-correct outcome. Are you sure they wrote this?


And it’s a long drive down the fairway onto the green for an easy putt. Great job, 9th Circuit.

(Enjoy the praise while it lasts. You’re going to screw something up tomorrow, I just know it.)

stevewhitemd | July 7, 2017 at 8:29 pm

…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.

That’s where it goes next. Hawaii will find a test case and go back to District Court seeking injunctive relief to enjoin the Immigration Service from enforcing the executive order, using a wedge issue as listed in the USSC opinion.

The over-under for the next Hawaii court move is Monday, 10 am local.

    stevewhitemd in reply to stevewhitemd. | July 8, 2017 at 12:25 am

    To the person who down-checked me, I point out that I’m not a cheerleader for what Hawaii is doing. I think the executive order is proper, necessary and reasonable. I’m pointing out what I think Hawaii will do next.

      Gremlin1974 in reply to stevewhitemd. | July 8, 2017 at 2:38 am

      It’s most likely a bot that down checked you. Very few people here, including the LI staff actually pay much attention to the up and down votes, so don’t let it bother you.

9th Circuit – “What to do, what to do. Oh, yeah, let’s just use the ‘it’s not our job’ argument and simply ignore it altogether. Duck and cover.”

While the action taken by the 9th was correct, it is quite possibly the most cowardly display of jurisprudence in recent memory.

What will happen next????

    Gremlin1974 in reply to Mac45. | July 8, 2017 at 2:41 am

    I’m confused on how you see acting in the correct, ethical, and legal manner is “cowardice” on behalf of the court? I am no fan of the 9th Circus and personally think it needs to be broken up and restructured, but when they are right, they are right. Doing the right thing is never cowardice.

      Mac45 in reply to Gremlin1974. | July 8, 2017 at 1:09 pm

      The 9th may have acted in the legal manner, but it hardly acted in an ethical manner. Let me explain.

      The SCOTUS agreed to hear this case and essentially vacated the existing injunction, except in a couple of areas. The Court scheduled a full hearing on all aspects of the case for October. So, the SCOTUS, the highest court in the land, now has sole jurisdiction in this case. If a case was before the 9th Circuit, then the members of that body would be highly upset if another court in their circuit were taking actions which were contrary to their standing orders without consulting them. Courts do not like it when parties to a case go judge shopping. Now, the district judge showed that he clearly understood that. He simply referred the petitioner to the court hearing the case, the SCOTUS. And the 9th should have done the same thing. But it didn’t.

      The 9th wants an excuse to get re-involved in this case. It can’t, as it rightly noted, because of existing procedures. So, it turns around and puts the lower court on the spot, by suggesting that the petitioner should request injunctive relief from the lower court. If the lower court does what it should, in this case, and once again refers the petitioner to the SCOTUS, the 9th is suggesting that they would be amenable to ruling on a request for further injunctive easement. If they were not planning on ruling for the petitioner, and unilaterally modifying the order of the SCOTUS, then they would never have suggested this course of action. It is a sneaky way to further comment on this case. And, that is unethical and cowardly. If you going to stick your finger into your boss’ eye then do it. Don’t weasel around.

These guys never give up. They will come up with something tomorrow.

God I’m getting sick of all this winning!!

I’m in favor of naming the A-1 Skyraider the finest American invention of all times.

Be there or be square.

Here’s a thought, if such a thing remains possile. When you drive under a freeway overpass look and see the signs about clearance.

Hint: it took a lot of propeller to convert that torque int airspeed. And a ballsy man to drive it. It’s a shame that almost none of you know his name.