D.C. Circuit won't review Trump admin contempt appeal further, sending matter back to Boasberg

The latest order over the Trump administration's actions sending flights to El Salvador on March 15. [Update: Boasberg moved things forward first thing Monday.]

The D.C. District Court judge who oversaw the initial challenge to President Donald Trump’s attempt to use the Alien Enemies Act to quickly remove people from the country will soon have the authority to continue any contempt proceedings over whether the administration violated his first orders in the case on March 15.

The full U.S. Court of Appeals for the D.C. Circuit announced on Friday that it is not going to further review the Trump administration’s challenge to U.S. District Judge James Boasberg’s order in contempt proceedings — letting stand a panel ruling that tossed out Boasberg’s April order finding “probable cause” of contempt.

Despite that, as Judge Florence Pan, a Biden appointee, wrote in dissent, “a majority of the full court does not believe that the district court was in the wrong.” This is so, Pan explained, because, in addition to three dissenting judges on Friday, an opinion from three judges who voted against rehearing the case en banc nonetheless agreed on that point. With those six votes on the 11-judge court, “a majority of the en banc court believes that the panel majority erred when it issued the writ of mandamus.“ (More below on why three judges who think the panel “erred” did not vote for en banc review.)

Further, and key, because the panel’s ruling allows contempt proceedings to continue, Friday’s ruling has the effect of sending the matter back to Boasberg — nearly seven months after it first went up to the D.C. Circuit.

It is a complicated mess of a ruling in an already procedurally complex matter, but the takeaway is not only that Boasberg will once again have jurisdiction over the contempt proceedings but that a majority of the court went on the record Friday backing him.

[Update, 10:00 a.m. November 17: Moving quickly, Chief Judge James Boasberg on Monday morning ordered the Trump administration and challengers in the Alien Enemies Act case before him to be ready “to discuss next steps in this Court’s contempt inquiry” in two days, at a hearing in the broader case already set for Wednesday.]

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So, procedurally what happened?

In an unusual ruling on Friday afternoon, the full D.C. Circuit let stand an earlier ruling from a three-judge panel of the appeals court tossing out Chief Judge James Boasberg’s April order requiring the administration to “purge” the contempt in the case over the AEA flights or provide the court with information about who allowed the flights to proceed to El Salvador on March 15 and 16 despite the temporary restraining order issued on March 15 blocking such flights.

I do realize that is an absurd and complex sentence, but it is what happened, and I will explain it all — and why each of those steps is important to understanding what happened on Friday, why it happened, and what happens now.

First, Friday’s order. The full D.C. Circuit will not be rehearing en banc the Trump administration’s challenge to Boasberg’s April “probable cause” order in his contempt proceedings.

That means the panel’s order stands. Under the panel’s order, the bottom line is that mandamus was granted — meaning an order is being sent to Boasberg. That was a 2-1 decision granted by two Trump appointees to the court, Judges Gregory Katsas and Neomi Rao. What do the order and related per curiam opinion say?

This is important: Not much.

There is one (1) relevant paragraph in the order:

And, one (1) other relevant paragraph in the referenced per curiam opinion:

Ultimately, this — and how Rao and Katsas resolved the matter — led to Friday’s order.

The matter came to the D.C. Circuit all the way back on April 17, the day after Boasberg issued his finding of “probable cause” that the Trump administration was in contempt over the March 15 flights.

The next day, on April 18, Katsas and Rao, granted the administration an “administrative” stay — blocking Boasberg’s order — over the objection of the third judge on the panel, Judge Cornelia Pillard. Pillard, an Obama appointee, noted her reason for denying the administrative stay, which is rare on the D.C. Circuit:

The panel delayed issuing a decision in the matter, holding onto it by seeking supplemental briefing at one point.

Ultimately, the panel did not issue a ruling until August 8 — more than 100 days after issuing the “administrative” stay.

The panel was unanimous that Boasberg’s order was not appealable, but Katsas and Rao ruled that mandamus — which is an extraordinary order only to be issued when the party seeking it has a “clear and indisputable right to relief,” as Pillard had noted back in April — should be granted.

Katsas and Rao found the administration met that burden — providing those two paragraphs of guidance — but here’s where it got weird. The reason there were only those two paragraphs is because Katsas and Rao found the right to mandamus existed for different reasons.

This, Pillard wrote in dissent in August, was bunk.

“[M]y colleagues, each for a distinct and non-overlapping reason, vote to grant a writ of mandamus to vacate the district court’s Order,” she wrote. “The right to relief is only ‘clear and indisputable’ when a petitioner ‘can point to cases in which a federal court has held that relief is warranted in a matter involving like issues and comparable circumstances.’ … Neither defendants nor my colleagues cite to any such cases. Moreover, I am unaware of any prior case in which a court has asserted the clarity on which mandamus relief depends without a majority agreeing as to what is so clear.“

Nonetheless, with their divergent reasons, mandamus was granted. But, the mandate — the formal order sending the case, and mandumus, back to Boasberg — was to be withheld until the full court decided whether it would hear the matter en banc, if requested. In short, more delay.

The full D.C. Circuit is made up of 11 active judges — seven Democratic appointees and four Republican appointees (including three Trump appointees) — so it was clear the full court would take an en banc petition seriously in a matter like this.

En banc review was requested on August 28, and, the next day the court ordered the administration to file a reply by September 8. That deadline was extended a week, and DOJ filed its opposition to en banc review on September 15.

Which brings us to Friday, when the full court — two months later — announced it would not be reviewing the matter further at this time.

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Friday’s opinions

The Democratic appointees handled this well — despite having a significant disagreement about what to do. This is how Pan, joined in dissent by Childs, was able to talk about what “a majority” of the appeals court did. (Millett wrote her own one paragraph dissent.)

In addition to the three dissenting judges, Pilliard — the dissenting judge on the panel decision — was joined by Judges Robert Wilkins (Obama) and Brad Garcia (Biden) in writing a joint opinion “respecting the denial of rehearing en banc.”

Despite their extremely skeptical view of the administration’s actions, they wrote that “any errors in the panel’s analysis do not warrant the further step of en banc review.“

Pillard being there is key. We know how she views this. She dissented in August. So, what happened?

Pilliard, Wilkins, and Garcia left no doubt how they view the administration’s conduct here:

The facts the district court recounted present grave rule-of-law concerns. Obedience to court orders is vital to the ability of the judiciary to fulfill its constitutionally appointed role. Judicial orders are not suggestions; they are binding commands that the Executive Branch, no less than any other party, must obey. …

The district court’s order here was a measured and essential response to what it reasonably perceived as shocking Executive Branch conduct.

Nonetheless, they continued, “Despite the seriousness of the underlying facts, the product of the panel’s intervention—the actual order it has issued—has no further practical effect, nor does it establish any binding precedent.“

This is so, the trio explained, because of the minimalistic panel order that allows for contempt proceedings to continue, the subsequent developments in the case (with people released from El Salvador’s CECOT prison), and the fact that Rao and Katsas made their decisions based on divergent reasons — leaving no majority reasoning to back up the mandamus grant.

As such, they wrote, “the writ of mandamus issued by the panel has no ongoing practical or precedential effect.“

Despite that sharp language, it’s notable that none of the four Republicans on the appeals court wrote anything on Friday. (Nor, for that matter, did Chief Judge Sri Srinivasan, an Obama appointee.)¹

Now, the split among the Democratic appointees should not be ignored. Pan’s dissenting opinion makes that clear. First as to the panel order itself:

The context in which this case was brought and litigated makes it exceptionally important. Our constitutional system was functioning as designed until a panel of this court improvidently intervened.

If nothing else, Pan explained, the court should rehear the matter to make clear when mandamus relief can be issued:

Although some of my colleagues opine that the mandamus order has no precedential value, I do not see why a future panel could not rely on it to issue a writ of mandamus despite the failure of the panel members to agree on a single legal theory to justify that “drastic” action.

Ultimately, it appears that Pillard (and several other Democratic appointees) concluded it was more important to get the matter back to Boasberg than keep fighting — and to keep fighting in a way that could have led to the Trump administration seeking U.S. Supreme Court action.

Instead, her vote helped to move the matter back to Boasberg — more than 200 days since the appeals court granted the Trump administration an “administrative” stay over her objection.

1. This paragraph was added after initial publication, with the final edit at 10:15 p.m.