Can DOJ Skip The Ninth Circuit? Well, They Can Try

You might have heard that the Trump Justice Department is seeking direct review of the district court's decision to enjoin the shutdown of the DACA program and ordering the government to continue to receive renewal applications.  You can read about it here (a short Politico story) but this post is not about DACA.  It's about what the Justice Department is attempting to do: bypass the Ninth Circuit and have the Supreme Court take the appeal directly.  Can they do that?

Yes, they can, but it is (in my opinion) a long shot.  This post will walk you through the rule and the statute.  You'll not only learn to read a citation to a federal law but see how to pick out the operative terms and form your own opinion. 

DOJ will be relying on Rule 11 of the Supreme Court of the United States which provides: 

Rule 11. Certiorari to a United States Court of Appeals before Judgment
A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court. See 28 U. S. C. § 2101(e).

Source: LII.  28 U.S.C. §2101(e) provides that "[a]n application to the Supreme Court for a writ of certiorari to review a case before judgment has been rendered in the court of appeals may be made at any time before judgment".  LII.  How do you read this?

"U.S.C." is the abbreviation for United States Code, which is all of the federal laws. "28" is the title number, being that part of the Code (there are 54 titles in all) that covers the Judiciary and Judicial Procedure.  Section (§) 2101 is titled "Supreme Court; time for appeal or certiorari; docketing; stay", so the Supreme Court not only has its own rules but federal statutes that apply to its operations.

So there is both a Supreme Court rule and a federal statute in play.  How does all this work?  Well, let's start with a bit of procedural history.  San Francisco-based U.S. District Court Judge William Alsup's order imposed a nationwide injunction, that is, the government had to start accepting DACA renewals everywhere, not just in San Francisco or the Northern District of California, which is the District Court on which he sits.  California is in the Ninth Circuit, so all appeals go to that circuit.  Why does DOJ want to, and how does it think it can, skip the normal appeal process and go straight to the Supreme Court?

The "why" is based on the administration's view that the Ninth Circuit is much too liberal and will almost certainly uphold Judge Alsup's order.  DOJ feels if they have any shot at getting it reversed, it's at the Supreme Court.  The "why" is also based on Judge Alsup's entry of a nationwide injunction, which in itself is somewhat controversial, although it has become the norm in immigration cases. (Yes, a possible future blog post).  The "how" (as they see it) is by Supreme Court Rule 11 that a petition for certiorari can be granted before the appeals court renders a "judgment" and §2101(e) that allows the petition to be filed at "any time before judgment".  And the case is (in DOJ's view) "of imperative public importance" that requires "immediate determination in this [the Supreme] Court".

To analyze DOJ's chances, let's first look at the time frame, which is crucial in appeals because if you are late, you are almost certainly out of luck.  The rule and the statute provide "before judgment is entered" in the court of appeals.  There is no problem here: DOJ filed their appeal of the District Court's order, so the case is before the Ninth Circuit, which has not entered a judgment.  Next, the first part of the "why"--that the Ninth Circuit will not give DOJ a fair hearing--carries no weight at the Supreme Court.  So DOJ must convince the Supreme Court that the DACA ruling, with its nationwide injunction, is "of imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court".  Will they succeed?

Well, if you were DOJ and wanted to convince the Supreme Court that the issues, in this case, were of "imperative public import", wouldn't you ask for a stay of Judge Alsup's order?  If his order has set up a situation that is so critical you want to/have to bypass the court of appeals, wouldn't you want it put on hold till the case was decided?  I certainly would, but then I'm not DOJ, which for some reason hasn't asked for one.  The reasons for not seeking a stay are I'm sure political, but that does not help DOJ before the Supreme Court.  Given that DACA was in force before the Trump administration decided to end it, arguing that its continuation is of "imperative public import" while at the same time not seeking a stay just does not strike me as a winning argument.

As to the four votes they will need to grant cert, we'll just have to wait and see.  I don't think DOJ will get them, given the nature of the case and DOJ's handling of it.  I can clearly think of four justices who will not vote to grant cert, but again, it only takes four.  Even if they do grant cert, a number of commentators think it will not be argued till the fall; the Supreme Court is almost out of room on their argument schedule.  

But one thing I do know.  They will discuss and vote on this case in the conference room shown above, which is taken from the Supreme Cout website.

Stay tuned.



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