DOJ Delicately Accuses 5th Circuit of Infusing Uncertainty Into WH Injunction
The 5th U.S. Circuit Court of Appeals, in a surprise order Tuesday (docket 23-30445), withdrew its order of the previous day granting the petition of the Republican attorneys general of Louisiana and Missouri for rehearing to reinstate federal officials from the Cybersecurity and Infrastructure Security Agency and the State Department to the social media injunction imposed on the White House, the surgeon general’s office, the FBI and the Centers for Disease Control and Prevention (see 2309240002).
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The 5th Circuit order also recalled its Sept. 11 mandate, which had cleared the government to apply to the U.S. Supreme Court for a full stay of the injunction, pending disposition of the government’s forthcoming cert petition to reverse the injunction permanently. The 5th Circuit gave the government until noon Thursday, time zone unspecified, to respond to the plaintiffs’ petition for rehearing.
The district court’s July 4 injunction will remain stayed pending resolution of the AGs’ petition for panel rehearing, said the order. The government almost immediately responded that the 5th Circuit's administrative stay means the government no longer needs SCOTUS relief before the administrative stay entered by Justice Samuel Alito expires at 11:59 pm EDT Wednesday.
The government nonetheless asks that SCOTUS grant its pending application and stay the district court’s preliminary injunction pending any further proceedings in the 5th Circuit and the filing and disposition of its cert petition, it said. A full stay of the injunction, pending SCOTUS review of the government’s petition to permanently reverse it, is warranted because the current stay runs only until the 5th Circuit resolves the GOP AGs’ petition for rehearing, said the government.
Unless SCOTUS grants its own stay now, the government will be forced to return to the Supreme Court with another stay application when the 5th Circuit acts on the petition for panel rehearing, it said. Whether the 5th Circuit denies rehearing “and adheres to its original decision or grants respondents’ request to rely on the same flawed reasoning to affirm an even broader portion of the district court’s injunction, such a stay application would largely or entirely duplicate the government’s pending application,” it said.
The government, in its SCOTUS filings Tuesday, delicately chastised the 5th Circuit for its Tuesday activity. “The recent course of proceedings and the current posture of this case provide further reason” not to burden SCOTUS and the parties “with another round of emergency stay briefing” after the 5th Circuit acts on the rehearing petition, said the government.
The 5th Circuit issued its decision Sept. 8 affirming the injunction, and extended its stay of the injunction for 10 days, pending the government’s application for SCOTUS review, said the government. On the government’s motion, the 5th Circuit then issued its mandate Sept. 11, “formally divesting itself of authority over the appeal,” it said. The parties were awaiting Alito’s 11:59 p.m. EDT when the 5th Circuit re-intervened, it said.
Rather than allowing the SCOTUS proceedings “to play out in the ordinary course,” the 5th Circuit first issued an order “purporting to grant panel rehearing, then rescinded that order, recalled its mandate, and granted its own stay pending further proceedings on respondents’ rehearing petition,” said the government. The 5th Circuit’s orders “have injected uncertainty into the proceedings” during the Supreme Court’s “active consideration of the case,” it said.
A full SCOTUS stay of the district court’s injunction pending cert would ensure that any additional orders issued by the 5th Circuit “will not further disrupt the proceedings or needlessly generate additional and duplicative emergency briefing,” it said.