{"id":108802,"date":"2025-02-20T15:16:40","date_gmt":"2025-02-20T23:16:40","guid":{"rendered":"https:\/\/xira.com\/p\/2025\/02\/20\/doj-demands-to-speak-to-the-manager-about-all-these-annoying-lawsuits\/"},"modified":"2025-02-20T15:16:40","modified_gmt":"2025-02-20T23:16:40","slug":"doj-demands-to-speak-to-the-manager-about-all-these-annoying-lawsuits","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2025\/02\/20\/doj-demands-to-speak-to-the-manager-about-all-these-annoying-lawsuits\/","title":{"rendered":"DOJ Demands To Speak To The Manager About All These Annoying Lawsuits"},"content":{"rendered":"
\"\"
(image via Getty Images)<\/sub><\/figcaption><\/figure>\n

Everyone knows that TROs aren\u2019t immediately appealable. What this appeal assumes is\u2026 maybe they are?<\/p>\n

The Trump DOJ has taken an unorthodox procedural stance with respect to interlocutory appeals. They seem to be under the impression that they\u2019re able to lodge them at any point when a judge issues a ruling they don\u2019t like. For people who spend so much time shitting on New York, they sure are keen to co-opt its procedures!<\/p>\n

This morning the government filed a notice of appeal<\/a> to the DC Circuit in Harris v. Bessent<\/em>, 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<\/a> 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<\/em> to it<\/em> TODAY, and that Judge Contreras stay<\/a> his own order that Cathy Harris be reinstated, which they call an \u201cextraordinary intrusion into the President\u2019s authority.\u201d<\/p>\n

This is part of a pattern from the new administration, which takes the position that the Federal Rules of Civil Procedure don\u2019t really apply to the president and his minions. On February 10, they noticed an appeal<\/a> of Judge John McConnell\u2019s January 31 TRO<\/a> blocking Trump\u2019s 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\u2019t even decided at the District Court level, but, assuming arguendo<\/em> that they did, rejected the motion<\/a>.<\/p>\n

Most egregiously, the administration immediately appealed<\/a> 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<\/a> that appeal for lack of jurisdiction, although Judge Gregory Katsas allowed himself a lengthy concurrence in which he rubbished Dellinger\u2019s claim while simultaneously expressing \u201cno view on the appealability or merits of any later order granting interim relief to Dellinger.\u201d<\/p>\n

Judge Jackson issued a TRO<\/a> on February 12, and the government appealed again<\/a> on the 13th, requesting either a stay of the trial judge\u2019s 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<\/a> for being totally out of order.<\/p>\n

\u201cBecause it would be inconsistent with governing legal standards and ill-advised to hold that a TRO is appealable based solely on unsubstantiated claims of \u2018extraordinary harm\u2019 for fourteen days, we decline to treat the TRO as an appealable injunction,\u201d they wrote. \u201cNor has the government established its entitlement to the extraordinary remedy of mandamus.\u201d<\/p>\n

This time, Judge Katsas penned an eleven-page dissent explaining that \u201cthe 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.\u201d This works from the assumption that Humphrey\u2019s Executor<\/em>, 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<\/em>. Which it might be! But as the Supreme Court hasn\u2019t actually made it official yet, it seems a bit presumptuous to treat it as a fait accompli.<\/p>\n

Or as Judge Jackson put it<\/a>:<\/p>\n

\n

Defendants\u2019 position is that the statutory restrictions on the Special Counsel\u2019s 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.<\/p>\n<\/blockquote>\n

And indeed, the government is so \u201ceager to have that issue heard\u201d that it has now stomped into the Supreme Court and demanded<\/a> an administrative stay of the trial judge\u2019s TRO.<\/p>\n

John Sauer, President Trump\u2019s personal lawyer, has not yet been confirmed. But acting SG Sarah Harris was not subtle about asking the Court\u2019s conservatives to declare the president above the law the way they did in July:<\/p>\n

\n

This case involves an unprecedented assault on the separation of powers that warrants immediate relief. As this Court observed just last Term, \u201cCongress cannot act on, and courts cannot examine, the President\u2019s actions on subjects within his \u2018conclusive and preclusive\u2019 constitutional authority\u201d\u2014including \u201cthe President\u2019s \u2018unrestricted power of removal\u2019 with respect to \u2018executive officers of the United States whom [the President] has appointed.\u2019\u201d Trump v. United States, 603 U.S. 593, 609 (2024) (citation omitted). As to such principal officers\u2014\u201cthe most important of his subordinates\u201d\u2014\u201c[t]he President\u2019s \u2018management of the Executive Branch\u2019 requires him to have \u2018unrestricted power to remove\u2019 them \u2018in their most important duties.\u2019\u201d 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.<\/p>\n<\/blockquote>\n

Perhaps counting on the justices\u2019 long separation from the slums of trial practice and amnesia regarding FRCP 65, Harris affected indignation that \u201cThe court set that TRO to last a full 14 days and specified that a hearing on an \u2018appealable\u2019 order would not be held until February 26.\u201d<\/p>\n

As of this writing, the Court has offered no relief. But this aggrieved flopping worked for Sauer the last time so \u2026 who even knows.<\/p>\n

\n

Liz Dye<\/a>\u00a0lives in Baltimore where she produces the Law and Chaos\u00a0substack<\/a>\u00a0and\u00a0podcast<\/a>.<\/strong><\/em><\/p>\n

The post DOJ Demands To Speak To The Manager About All These Annoying Lawsuits<\/a> appeared first on Above the Law<\/a>.<\/p>\n

\"\"
(image via Getty Images)<\/sub><\/figcaption><\/figure>\n

Everyone knows that TROs aren\u2019t immediately appealable. What this appeal assumes is\u2026 maybe they are?<\/p>\n

The Trump DOJ has taken an unorthodox procedural stance with respect to interlocutory appeals. They seem to be under the impression that they\u2019re able to lodge them at any point when a judge issues a ruling they don\u2019t like. For people who spend so much time shitting on New York, they sure are keen to co-opt its procedures!<\/p>\n

This morning the government filed a notice of appeal<\/a> to the DC Circuit in Harris v. Bessent<\/em>, 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<\/a> 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<\/em> to it<\/em> TODAY, and that Judge Contreras stay<\/a> his own order that Cathy Harris be reinstated, which they call an \u201cextraordinary intrusion into the President\u2019s authority.\u201d<\/p>\n

This is part of a pattern from the new administration, which takes the position that the Federal Rules of Civil Procedure don\u2019t really apply to the president and his minions. On February 10, they noticed an appeal<\/a> of Judge John McConnell\u2019s January 31 TRO<\/a> blocking Trump\u2019s 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\u2019t even decided at the District Court level, but, assuming arguendo<\/em> that they did, rejected the motion<\/a>.<\/p>\n

Most egregiously, the administration immediately appealed<\/a> 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<\/a> that appeal for lack of jurisdiction, although Judge Gregory Katsas allowed himself a lengthy concurrence in which he rubbished Dellinger\u2019s claim while simultaneously expressing \u201cno view on the appealability or merits of any later order granting interim relief to Dellinger.\u201d<\/p>\n

Judge Jackson issued a TRO<\/a> on February 12, and the government appealed again<\/a> on the 13th, requesting either a stay of the trial judge\u2019s 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<\/a> for being totally out of order.<\/p>\n

\u201cBecause it would be inconsistent with governing legal standards and ill-advised to hold that a TRO is appealable based solely on unsubstantiated claims of \u2018extraordinary harm\u2019 for fourteen days, we decline to treat the TRO as an appealable injunction,\u201d they wrote. \u201cNor has the government established its entitlement to the extraordinary remedy of mandamus.\u201d<\/p>\n

This time, Judge Katsas penned an eleven-page dissent explaining that \u201cthe 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.\u201d This works from the assumption that Humphrey\u2019s Executor<\/em>, 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<\/em>. Which it might be! But as the Supreme Court hasn\u2019t actually made it official yet, it seems a bit presumptuous to treat it as a fait accompli.<\/p>\n

Or as Judge Jackson put it<\/a>:<\/p>\n

\n

Defendants\u2019 position is that the statutory restrictions on the Special Counsel\u2019s 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.<\/p>\n<\/blockquote>\n

And indeed, the government is so \u201ceager to have that issue heard\u201d that it has now stomped into the Supreme Court and demanded<\/a> an administrative stay of the trial judge\u2019s TRO.<\/p>\n

John Sauer, President Trump\u2019s personal lawyer, has not yet been confirmed. But acting SG Sarah Harris was not subtle about asking the Court\u2019s conservatives to declare the president above the law the way they did in July:<\/p>\n

\n

This case involves an unprecedented assault on the separation of powers that warrants immediate relief. As this Court observed just last Term, \u201cCongress cannot act on, and courts cannot examine, the President\u2019s actions on subjects within his \u2018conclusive and preclusive\u2019 constitutional authority\u201d\u2014including \u201cthe President\u2019s \u2018unrestricted power of removal\u2019 with respect to \u2018executive officers of the United States whom [the President] has appointed.\u2019\u201d Trump v. United States, 603 U.S. 593, 609 (2024) (citation omitted). As to such principal officers\u2014\u201cthe most important of his subordinates\u201d\u2014\u201c[t]he President\u2019s \u2018management of the Executive Branch\u2019 requires him to have \u2018unrestricted power to remove\u2019 them \u2018in their most important duties.\u2019\u201d 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.<\/p>\n<\/blockquote>\n

Perhaps counting on the justices\u2019 long separation from the slums of trial practice and amnesia regarding FRCP 65, Harris affected indignation that \u201cThe court set that TRO to last a full 14 days and specified that a hearing on an \u2018appealable\u2019 order would not be held until February 26.\u201d<\/p>\n

As of this writing, the Court has offered no relief. But this aggrieved flopping worked for Sauer the last time so \u2026 who even knows.<\/p>\n

\n

Liz Dye<\/a>\u00a0lives in Baltimore where she produces the Law and Chaos\u00a0substack<\/a>\u00a0and\u00a0podcast<\/a>.<\/strong><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

(image via Getty Images) Everyone knows that TROs aren\u2019t immediately appealable. What this appeal assumes is\u2026 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\u2019re able to lodge them at any point when a judge issues a ruling […]<\/p>\n","protected":false},"author":3,"featured_media":108792,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-108802","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2025\/02\/angry_associate_GettyImages-184233407-8zqRZ6.jpeg?fit=478%2C358&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/108802","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=108802"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/108802\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/108792"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=108802"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=108802"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=108802"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}