DOJ Demands To Speak To The Manager About All These Annoying Lawsuits

Everyone knows that TROs aren’t immediately appealable. What this appeal assumes is… maybe they are?

The Trump DOJ has taken an unorthodox procedural stance with respect to interlocutory appeals. They seem to be under the impression that they’re able to lodge them at any point when a judge issues a ruling they don’t like. For people who spend so much time shitting on New York, they sure are keen to co-opt its procedures!

This morning the government filed a notice of appeal to the DC Circuit in Harris v. Bessent, a case where a recently-fired member of the Merit System Protection Board is contesting her termination. Trial Judge Rudolph Contreras issued a temporary restraining order just two days ago and scheduled the hearing on the motion for preliminary injunction on March 3, inside the 14-day statutory period. And yet the government is now demanding both that the DC Circuit pay attention to it TODAY, and that Judge Contreras stay his own order that Cathy Harris be reinstated, which they call an “extraordinary intrusion into the President’s authority.”

This is part of a pattern from the new administration, which takes the position that the Federal Rules of Civil Procedure don’t really apply to the president and his minions. On February 10, they noticed an appeal of Judge John McConnell’s January 31 TRO blocking Trump’s blanket ban on federal spending that makes his ass itch. In that case, the First Circuit seemed highly dubious that they had jurisdiction over something that wasn’t even decided at the District Court level, but, assuming arguendo that they did, rejected the motion.

Most egregiously, the administration immediately appealed an administrative stay imposed by Judge Amy Berman Jackson on February 10 in the case of Hampton Dellinger, the head of the Office of Special Counsel, who was also fired in violation of the statute. The DC Circuit dismissed that appeal for lack of jurisdiction, although Judge Gregory Katsas allowed himself a lengthy concurrence in which he rubbished Dellinger’s claim while simultaneously expressing “no view on the appealability or merits of any later order granting interim relief to Dellinger.”

Judge Jackson issued a TRO on February 12, and the government appealed again on the 13th, requesting either a stay of the trial judge’s order or that the appeals court treat the motion as a petition for mandamus. The case went to the same panel, and again Judge Michelle Childs and Florence Pan tossed it for being totally out of order.

“Because it would be inconsistent with governing legal standards and ill-advised to hold that a TRO is appealable based solely on unsubstantiated claims of ‘extraordinary harm’ for fourteen days, we decline to treat the TRO as an appealable injunction,” they wrote. “Nor has the government established its entitlement to the extraordinary remedy of mandamus.”

This time, Judge Katsas penned an eleven-page dissent explaining that “the President is immune from injunctions directing the performance of his official duties, and Article II of the Constitution grants him the power to remove agency heads.” This works from the assumption that Humphrey’s Executor, the 1935 Supreme Court case which allowed for statutory protections for executive branch officers is fully dead, instead of just mostly dead after Seila Law. Which it might be! But as the Supreme Court hasn’t actually made it official yet, it seems a bit presumptuous to treat it as a fait accompli.

Or as Judge Jackson put it:

Defendants’ position is that the statutory restrictions on the Special Counsel’s removal are unconstitutional. They are eager to have that issue heard and resolved by a higher court. They will have that opportunity in due course, but first, the issue has to be fully briefed in this Court, where the case is pending. There has to be a hearing, and this Court has to issue an appealable order.

And indeed, the government is so “eager to have that issue heard” that it has now stomped into the Supreme Court and demanded an administrative stay of the trial judge’s TRO.

John Sauer, President Trump’s personal lawyer, has not yet been confirmed. But acting SG Sarah Harris was not subtle about asking the Court’s conservatives to declare the president above the law the way they did in July:

This case involves an unprecedented assault on the separation of powers that warrants immediate relief. As this Court observed just last Term, “Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his ‘conclusive and preclusive’ constitutional authority”—including “the President’s ‘unrestricted power of removal’ with respect to ‘executive officers of the United States whom [the President] has appointed.’” Trump v. United States, 603 U.S. 593, 609 (2024) (citation omitted). As to such principal officers—“the most important of his subordinates”—“[t]he President’s ‘management of the Executive Branch’ requires him to have ‘unrestricted power to remove’ them ‘in their most important duties.’” Id. at 621 (citation omitted). Enjoining the President and preventing him from exercising these powers thus inflicts the gravest of injuries on the Executive Branch and the separation of powers.

Perhaps counting on the justices’ long separation from the slums of trial practice and amnesia regarding FRCP 65, Harris affected indignation that “The court set that TRO to last a full 14 days and specified that a hearing on an ‘appealable’ order would not be held until February 26.”

As of this writing, the Court has offered no relief. But this aggrieved flopping worked for Sauer the last time so … who even knows.

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Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.