State of Hawaii v. Trump

Filing 327

ORDER of USCA as to #324 Notice of Appeal, filed by State of Hawaii, 9CCA NO. 17-16366: This appeal is DISMISSED for lack of jurisdiction. Plaintiffs' "Emergency Motion under FRAP 8 and Circuit Rule 27-3 for Injunction Pending Appeal" is DENIED as moot. (emt, )CERTIFICATE OF SERVICEParties served by the Ninth Circuit Court of Appeals.

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FILED
JUL 7 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

STATE OF HAWAII; ISMAIL ELSHIKH,
Plaintiffs-Appellants,
v.
DONALD J. TRUMP, in his official
capacity as President of the United States;
U.S . DEPARTMENT OF HOMELAND
SECURITY; JOHN F. KELLY, in his
official capacity as Secretary of Homeland
Security; U.S. DEPARTMENT OF STATE;
REX W. TILLERSON, in his official
capacity as Secretary of State; UNITED
STATES OF AMERICA,

No.

17-16366

D.C. No.
l:l 7-cv-00050-DKW-KSC
District of Hawaii,
Honolulu
ORDER

Defendants-Appellees.
Before: HAWKINS, GOULD, and PAEZ, Circuit Judges.
This is an appeal of the district court's July 6, 2017 denial of Plaintiffs'
"Emergency Motion to Clarify Scope of Preliminary Injunction." Plaintiffs
requested that the district court "clarify the scope of the Court's June 19, 2017
amended preliminary injunction." The district court denied the clarification
motion, explaining that, because it was the Supreme Court-not the district
court-that issued the June 26, 2017 order staying in part the district court's
preliminary injunction, clarification of the June 26 order must be sought from the
Supreme Court. Plaintiffs have filed an emergency motion requesting that this

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court enjoin the Government from violating the Supreme Court's June 26 order or
directing the district court to do so.
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)(l).
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. See, e.g.,

A/sea Valley All. v. Dep 't of Commerce, 358 F.3d 1181 , 1186 (9th Cir. 2004). And
this scenario does not present an order of "practical finality" because-as
discussed below-Plaintiffs may seek injunctive relief from the district court. Cf

Nehmer v. US. Dep 't of Veterans Affairs, 494 F.3d 846, 856 n.5 (9th Cir. 2007);
All Alaskan Seafoods, Inc. v. MIV Sea Producer, 882 F.2d 425 , 428 n.2 (9th Cir.
1989).

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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. 1
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-0-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.

IT IS SO ORDERED.

1

Plaintiffs' emergency motion also seeks a writ of mandamus. Because the district
court's denial of Plaintiffs' motion for clarification was not clear error, the
extraordinary power of mandamus is not appropriate. See Bauman v. US. Dist.
Ct., 557 F.2d 650, 654-55 (9th Cir. 1977). Plaintiffs' motion for a writ of
mandamus is DENIED.
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