Ron Givens v. Gavin Newsom

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 4 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RON GIVENS; CHRISTINE BISH, No. 20-15949
Plaintiffs-Appellants, D.C. No.
2:20-cv-00852-JAM-CKD
v.
GAVIN NEWSOM, in his official capacity MEMORANDUM*
as the Governor of California; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted November 17, 2020
Pasadena, California
Before: FERNANDEZ and PAEZ, Circuit Judges, and TIGAR,** District Judge.
Plaintiffs-Appellants Ron Givens and Christine Bish (“Plaintiffs”) appeal the
district court’s denial of their motion for a temporary restraining order (“TRO”)
seeking to enjoin public health directives issued by Defendants-Appellees Gavin
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jon S. Tigar, United States District Judge for the
Northern District of California, sitting by designation.
Newsom, et. al. (the “State”) to slow the spread of the coronavirus. Because the
district court’s denial of Plaintiffs’ motion for a TRO was not an appealable
interlocutory order, we lack jurisdiction over this appeal. Accordingly, we dismiss
the appeal.
Our jurisdiction over interlocutory appeals is governed by 28 U.S.C. § 1292.
An appeal ordinarily “does not lie from the denial of an application for a temporary
restraining order” because such appeals are considered “premature.” Religious
Tech. Ctr., Church of Scientology Int’l, Inc. v. Scott, 869 F.2d 1306, 1308 (9th Cir.
1989). A district court’s order denying an application for a TRO is reviewable on
appeal only if the order is tantamount to the denial of a preliminary injunction. Id.This is so where the denial followed a “full adversary hearing” and if, “in the
absence of review, the appellant would be effectively foreclosed from pursuing
further interlocutory relief.” Id. (quoting Environmental Defense Fund, Inc. v.
Andrus, 625 F.2d 861, 862 (9th Cir. 1980)). A district court’s denial of a TRO
“effectively foreclose[s]” a party from “pursuing further interlocutory relief” and
permits appeal when it makes clear that any request for injunctive relief would be
rejected. Id. at 1308-09 (allowing appeal from denial of a TRO where the district
court “emphatically” stated that circuit precedent “foreclosed any interlocutory
relief” and concluded that “I don’t believe that the appellate court feels that in this
case an injunction is appropriate . . . I would say that we don’t have anything much
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to talk about.”).
Here, although the parties engaged in an adversary hearing the district
court’s explanation for denying the TRO did not dispositively foreclose Plaintiffs
from again seeking interlocutory relief. Instead, the district court noted only that
under “the evidence before this Court on a limited record, I don’t believe . . . that a
temporary restraining order at this time is appropriate,” and invited Plaintiffs to
present more evidence to persuade the court of their position. At the TRO hearing,
the district court emphasized that its consideration of the questions at issue in the
TRO motion occurred at a “very, very early stage of this lawsuit,” and offered to
Plaintiffs that “if [they] want to continue or initiate discussions that may change
the Court’s view or impact this case, please notify [the Court] right away.”
The district court’s invitation to Plaintiffs to supplement the record and its
stated openness to considering additional arguments or developments as the case
proceeded does not demonstrate that the “futility of any further hearing was
patent” as required to show that the district court had foreclosed further
consideration of interlocutory relief. 689 F.2d at 1309. Therefore, the district
court’s denial of TRO was not tantamount to the denial of a preliminary injunction
and was not appealable under 28 U.S.C. § 1292. Thus, we lack jurisdiction over the
appeal.
DISMISSED.
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