Last night I opined on the substantive merits of the 9th Circuit’s opinion in Washington v. Trump, as well as the stunning standard of review it applied–whether “any alien from one of the countries named in the Order has perpetrated a terrorist attack in the United States.” In this post, I’d like to study the procedural aspects of the panel’s decision, and explain what this posture means for the case going forward.

Washington argued that an appeal of a temporary restraining order is not appropriate. As a general matter, that is correct. Parties can seek mandamus of a temporary restraining order, but that form of review is far more narrow. However, the government urged the 9th Circuit to treat Judge Robart’s decision (2 paragraphs with no analysis) as if it were a preliminary injunction. That move entailed an important risk. If the 9th Circuit agreed that Judge Robart’s decision could be treated as a preliminary injunction, then the panel could exercise broader review; but on the flipside, if in fact it was a preliminary injunction, there were be no further opportunity to actually hold a preliminary injunction hearing and submit evidence to the record.

The Ninth Circuit indeed ruled that Judge Robart’s decision should be treated as a preliminary injunction, and thus it could exercise appellate jurisdiction.

We are satisfied that in the extraordinary circumstances of this case, the district court’s order possesses the qualities of an appealable preliminary injunction. The parties vigorously contested the legal basis for the TRO in written briefs and oral arguments before the district court. The district court’s order has no expiration date, and no hearing has been scheduled. Although the district court has recently scheduled briefing on the States’ motion for a preliminary injunction, it is apparent from the district court’s scheduling order that the TRO will remain in effect for longer than fourteen days. In light of the unusual circumstances of this case, in which the Government has argued that emergency relief is necessary to support its efforts to prevent terrorism, we believe that this period is long enough that the TRO should be considered to have the qualities of a reviewable preliminary injunction.

There is an important shortcoming in this analysis: DOJ filed a brief on the eve of the oral argument, and (as far as I can tell) did not submit any evidence to the record. Nor was there any sort of evidentiary hearing, where the government could submit information (perhaps even classified) to rebut Washington’s case. And, as far as I can tell, there will not be such a hearing. Contemporaneously with the release of the per curiam opinion, the panel released an unpublished procedural order. It sets out this briefing schedule:

Any motion for reconsideration or reconsideration en banc of the court’s February 9, 2017 order denying the motion for stay is due within 14 days. See 9th Cir. R. 27-10(a)(2). If a motion for reconsideration or reconsideration en banc is filed, a response to the motion shall be filed within 7 days after service of the motion. See 9th Cir. R. 27-10(b).

The following briefing schedule shall govern this appeal: the opening brief is due March 3, 2017; the answering brief is due March 24, 2017; and the optional reply brief is due March 29, 2017.

According to this order, the panel does not envision this case going back to Judge Robart at all. To this effect, late last night Washington submitted a letter to Judge Robart, noting that unless it hears otherwise, the state will treat the prior-issued scheduling order as moot.  It states:

This afternoon, the Ninth Circuit denied an emergency motion for a stay of the temporary injunction imposed by Judge Robart. The Court of Appeals held that the district court order “possesses the qualities of an appealable preliminary injunction” and established a briefing schedule for the appeal of the district court order. Washington v. Trump, Case No. 17-35105, slip op. at 8, Dkt. Entry 134 (9th Cir. 2017); id. at Dkt. Entry 135 (ECF Nos. 68, 69). In light of the Court of Appeals decision, the States assume the district court briefing schedule is no longer applicable. The States will not be filing a preliminary injunction motion and brief in the district court tonight, unless we receive contrary guidance from the district court.

This posture puts the Trump Administration in a lose-lose procedural posture. The court noted at several points that there is “no evidence” in the record to support the executive order.

Despite the district court’s and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years.

But now, the federal government will not have any opportunity to actually submit any evidence into the record. In theory, at least, the Justice Department could include affidavits attached to its subsequent pleadings–perhaps under seal if it contains classified information. I’ve long railed against Circuit Courts finding facts on appeal. In this case, especially, where there is no opportunity for an evidentiary hearing, such a procedure is entirely inappropriate. But here we are.

So what are the possible paths going forward? I sketched out three options earlier this week, but here are my latest thoughts.

First, the government can file a petition for rehearing en banc. The likelihood that this gets granted is close to zero. But it may generate a dissent from denial–some reasoned opinion showing that circuit judges are not all in agreement. (At times like this, I am sad that Judge O’Scannlain has assumed senior status). The biggest virtue of this move is that it buys the government some time. During this pause, the government can figure what it wants to do with the Supreme Court. Alternatively, it withdraw the executive order and issue a new one its stead. More importantly, depending on how long this process takes, it is feasible for Justice Gorsuch to get on the bench by the time an appeal would be heard.

Second, the government can rush to the Supreme Court, and seek an emergency stay. This would entail filing an application for a stay with Circuit Justice Kennedy. However, I am doubtful there are five votes for this option. Also, a denial will be seen as a defeat, and a signal (on the shadow docket) that Trump is unlikely to succeed on the merits.

Third, the government can file a petition for certiorari before judgment. This only takes four votes to grant. If they go down the en banc road first, it might buy a few weeks, and by the time the case goes for argument, we may have nine Justices.

Fourth, the government can do nothing, and proceed to file merit briefs later in March before the three-judge panel. This is futile. I can’t imagine the panel changing its mind from the initial decision–especially, if the burden is to demonstrate that individuals from those seven countries have in fact engaged in an act of terrorism. We know the answer to that question is zero. So there is no likelihood of reversal in further proceedings.

Fifth, the government can withdraw the executive order, and issue a more narrowly tailored order. This would not necessarily moot the litigation, under the voluntary cessation doctrine, but it would eliminate any grounds for standing for green card holders and others with a connection to the United States. It would also place the focus on people with no connections to the United States, such as refugee applicants. (Apparently, the White House is planning a rewrite of the order). This is a much stronger litigation posture.

None of these options are good for the Trump Administration. My recommendation–not that anyone is listening–go through Door #5 and let the courts consider a final, more narrowly tailored order, rather than an interim, blunderbuss order.