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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-14480
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D.C. Docket No. 1:20-cv-04809-TCB
CORECO JA’QUAN PEARSON, et al.,
Plaintiff - Appellants,
versus
BRIAN KEMP, et al.,
Defendant - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(December 4, 2020)
Before WILSON, ROSENBAUM, and BRASHER, Circuit Judges.
BRASHER, Circuit Judge:
This appeal arises from last-minute litigation that alleges widespread election-
related misconduct and seeks sweeping relief. The issue before us, however, is a
narrow question of appellate jurisdiction: has the district court entered an order that
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we have jurisdiction to review? Because the answer to that question is “no,” we must
dismiss this appeal for lack of jurisdiction and allow the proceedings to continue in
the district court.
I. BACKGROUND
The plaintiffs in this case are a group of Presential Electors from Georgia. On
the Wednesday before Thanksgiving, they sued Georgia’s Governor, its Secretary
of State, and other defendants. They asserted that Georgia’s certified 2020
Presidential Election results were suspect because of alleged vulnerabilities in
Georgia’s election machines and alleged mathematical and statistical anomalies in
the vote count. Two days later—the Friday after Thanksgiving—the plaintiffs filed
a motion for injunctive relief, seeking (1) a temporary restraining order preventing
the defendants from erasing or altering forensic data on voting machines, (2) an
injunction de-certifying the Presidential election results, or alternatively a stay in the
delivery of the certified results to the Electoral College, and (3) an injunction making
the voting machines available to the plaintiffs for forensic analysis.
The district court took the complaint and motion seriously and, on Sunday
night, held a hearing on the plaintiffs’ motion via Zoom. There, the plaintiffs’
counsel explained that the evidence the plaintiffs hoped to collect from Georgia’s
voting machines might be permanently lost if the defendants were not immediately
enjoined from altering the machines, since those machines needed to be recalibrated
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for upcoming state and local runoff elections. Rather than waiting for a ruling on the
motion for injunctive relief that covered ten counties, the plaintiffs proposed that the
district court order “very limited” relief in “two or three counties.” This solution
would allow the plaintiffs to quickly collect the data they sought without impeding
the runoff elections. The district judge agreed with the plaintiffs, and said that he
would “order and temporarily restrain the Defendants . . . from altering or destroying
or erasing[,] or allowing the alteration, destruction, or erasing of any of the computer
information on any of the [voting] machines” in Cobb, Gwinnett, and Cherokee
Counties.
True to his word, the district judge issued a written temporary restraining
order on Sunday night that gave the plaintiffs what they said they wanted. That order
enjoined the defendants from erasing or altering data on voting machines in the three
counties listed above. It also ordered the defendants to produce a copy of the contract
between the State of Georgia and Dominion Voting Systems. Two follow-up orders
set an expedited evidentiary hearing for the morning of December 4, 2020 on the
broader relief requested in the plaintiffs’ motion and certified that the Sunday night
order contained the elements required for a permissive appeal under 28 U.S.C. §
1292(b).
A few days later, the plaintiffs filed a notice of appeal as to the district court’s
Sunday night order. As a result, the district court canceled the hearing on the broader
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relief the plaintiffs had requested. The defendants filed a conditional cross-appeal.
Later, the plaintiffs also requested permission to appeal in this Court under 28 U.S.C.
§ 1292(b).
II. DISCUSSION
In our judicial system, the district court is the central forum for testing,
advancing, proving, or disproving a party’s allegations. It is where trials take place
and the parties present their evidence. As a court of appeals, “we are a court of
review, not of first view.” Cutter v. Wilkinson, 544 U.S. 709, 718, n.7 (2005).
Typically, we enter the picture only after the district court has considered the parties’
competing positions and a winner has emerged. Less frequently, we review
preliminary injunctions or orders that ask a particularly important, purely legal
question.
The district court has not issued one of those appealable orders. In this case,
the district court issued an emergency temporary restraining order at the plaintiffs’
request, worked at a breakneck pace to provide them an opportunity for broader
relief, and was ready to enter an appealable order on the merits of their claims
immediately after its expedited hearing on December 4, 2020. But the plaintiffs
would not take the district court’s “yes” for an answer. They appealed instead. And,
because they appealed, the evidentiary hearing has been stayed and the case
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considerably delayed. For our part, the law requires that we dismiss the appeal and
return the case to the district court for further proceedings.
A. The Sunday night order is not appealable under 28 U.S.C. §§ 1291 or
1292(a)(1)
We begin with the obvious: we cannot exercise our customary appellate
jurisdiction because the district court has not entered a final judgment. See 28 U.S.C.
§ 1291. A final judgment is a decision that “ends the litigation on the merits and
leaves nothing for the court to do but execute the judgment.” Ray Haluch Gravel Co.
v. Centr. Pension Fund of Operating Eng’rs and Participating Emp’rs, 571 U.S.
177, 183 (2014). An appeal from a final judgment may be taken as a matter of right.
Gelboim v. Bank of Am. Corp., 574 U.S. 405, 407 (2015).
The plaintiffs concede no final judgment has been entered in this case. Instead,
the plaintiffs argue that the district court’s Sunday night order is immediately
appealable as an order denying their request for a temporary restraining order. The
plaintiffs argue that that—even though the Sunday night order granted their request
for a temporary restraining order in part and did not, on its face, deny anything—the
order effectively denied their request because of the exigent circumstances involved.
This argument fails for three reasons.
First, the district court’s order does not deny the plaintiffs their requested
relief at all. The plaintiffs filed their motion on the Friday after Thanksgiving. The
district court held an emergency hearing over the weekend and, on Sunday,
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November 29th, entered a TRO granting the plaintiffs’ request in part. Notably, this
Sunday night order gave the plaintiffs almost exactly what their counsel proposed as
a temporary solution at the hearing: it “identif[ied] a very limited . . . number of
counties” and enjoined the defendants from erasing or altering data contained on
Dominion voting machines in those counties, thus, preserving them for future
inspection. The district court then set an expedited briefing schedule and an
emergency evidentiary hearing for December 4th. The purpose of the briefing
schedule was to allow the defendants an opportunity to respond to the plaintiffs’
allegations. And the purpose of the evidentiary hearing was to allow the plaintiffs to
support their allegations with evidence and, potentially, to win the injunctive relief
that they were seeking. Nothing about that chain of events suggests an adverse ruling
on the plaintiffs’ motion.
Second, even if the district court’s order were properly construed as the denial
of the plaintiffs’ request—again, ignoring the fact that it did not deny anything—we
do not ordinarily have jurisdiction over TRO rulings. McDougald v. Jenson, 786
F.2d 1465, 1472 (11th Cir. 1986). We exercise appellate jurisdiction over TRO
decisions only “when a grant or denial of a TRO might have a serious, perhaps
irreparable, consequence, and can be effectually challenged only by immediate
appeal[.]” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225 (11th Cir. 2005)
(quoting Ingram v. Ault, 50 F.3d 898, 900 (11th Cir.1995)). This is a high hurdle for
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appellants to clear, and our caselaw provides for emergency appeals from TRO
decisions only in the direst of circumstances. In Ingram, we permitted an appeal
where a prisoner was set to be executed within twenty-four hours of a TRO being
denied. Ingram, 50 F.3d at 899-900. In Schiavo, we permitted an appeal where a
court denied a TRO that would have put a terminally ill patient back on life support.
Schiavo, 403 F.3d at 1225.
The plaintiffs here are not in the same position as an inmate about to be
executed or a patient removed from life support. The “irreparable” harm threatened
here is that voting machines will be “wiped,” erasing the data they contain and
preventing the plaintiffs from conducting the forensic inspection they request. But
the plaintiffs have not demonstrated that the alleged harm is imminent—that the
defendants would have wiped all these machines county-by-county, destroying all
the data they contain, unless the district court had granted broader relief on Sunday
night. In fact, the district court’s order was specifically designed to avoid this
consequence by enjoining the defendants from erasing or altering data on the
machines in three counties. It preserved the status quo in a way that gave the
plaintiffs what they said they wanted and was minimally disruptive to the State of
Georgia’s ability to conduct special run-off elections in other counties. Nothing
compelled an immediate appeal: had the plaintiffs not appealed the district court’s
Sunday night order, the district court would have held the evidentiary hearing it set
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for December 4th and, by now, would likely have ruled on the plaintiffs’ broader
request for injunctive relief. Afterwards, the plaintiffs could have appealed.
Third, and for many of the same reasons, the district court’s Sunday night
order was not an appealable preliminary injunction order masquerading as a ruling
on a request for a TRO. To determine whether an order denominated as a TRO is
actually an appealable decision on a preliminary injunction, we review certain
factors including “the duration of the order” and “the extent of evidence submitted
to the district court.” Cuban Am. Bar Ass'n, Inc. v. Christopher, 43 F.3d 1412, 1422
(11th Cir. 1995). The Sunday night order lacks the hallmarks of a preliminary
injunction ruling. It does not engage the traditional four-factor test for granting
preliminary injunctions. Its duration is limited to ten days. And, although some
evidence has been submitted to the district court, no live witnesses have testified, no
discovery has been conducted, and the defendants have not even had a chance to file
a response to the complaint.
B. The Sunday night order is not appealable under 28 U.S.C. § 1292(b)
Alternatively, the plaintiffs ask that we permit them to appeal under 28 U.S.C.
§ 1292(b). Where no other avenue of appeal is open, Section 1292(b) allows a court
of appeals to exercise jurisdiction under certain specified conditions. Digital Equip.
Corp. v. Desktop Direct, Inc., 511 U.S. 863, 883 (1994). Review under this statute
was “intended, and should be reserved, for situations in which the court of appeals
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can rule on a pure, controlling question of law without having to delve beyond the
surface of the record in order to determine the facts” and should not, in contrast, turn
on case-specific inquiries, such as “whether the district court properly applied settled
law to the facts or evidence of a particular case.” McFarlin v. Conseco Servs., LLC,
381 F.3d 1251, 1259 (11th Cir. 2004). This Court has identified five conditions
necessary for it to consider an issue in an interlocutory appeal under Section 1292(b):
“(1) the issue is a pure question of law, (2) the issue is controlling of at least a
substantial part of the case, (3) the issue was specified by the district court in its
order, (4) there are substantial grounds for difference of opinion on the issue, and
(5) resolution may well substantially reduce the amount of litigation necessary on
remand.” Mamani v. Berzain, 825 F.3d 1304, 1312 (11th Cir. 2016) (quotation marks
omitted).
This avenue of appellate jurisdiction is also closed. The case does not meet
our criteria for Section 1292(b) interlocutory review for at least three reasons.
First, Section 1292(b) does not countenance an interlocutory appeal at this
point in the case. The district court’s Sunday night order was entered after only a
weekend’s worth of litigation and does not conclusively answer any legal
questions. Cf. Ray v. American Nat. Red Cross, 921 F.2d 324, 325 (D.C. Cir. 1990)
(no appeal when the district court certified the question under § 1292(b) without first
deciding it). Perhaps for that reason, the order certifies that the case involves a
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controlling question of law but does not identify what that question is. See McFarlin,
381 F.3d at 1264 (“If the district court is unsure about which of the questions, if any,
that are answered by its order qualify for certification under § 1292(b), it should not
certify the order for review. If convinced that a particular question does qualify, the
district court should tell us which question it is.”). And, most problematic in our
view, the parties intended to present more evidence on the issues addressed in the
district court’s order, and the district court scheduled briefs and a hearing to allow
it. We cannot use Section 1292(b) to “offer advisory opinions rendered on
hypotheses which evaporate in the light of full factual development.” Paschall v.
Kansas City Star Co., 605 F.2d 403, 406 (8th Cir. 1979) (cleaned up).
Second, we are not convinced the primary question the plaintiffs suggest we
answer—whether county-level election officials are the proper defendants to redress
the plaintiffs’ alleged injuries—is a “pure or abstract legal question” that can be
“stated at a high enough level of abstraction to lift the question out of the details of
the evidence or facts of a particular case.” McFarlin, 381 F.3d at 1259, 1262. This
issue goes to the redressability element of standing. “Standing for Article III
purposes requires a plaintiff to provide evidence of an injury in fact, causation and
redressability.” Dermer v. Miami-Dade Cnty., 599 F.3d 1217, 1220 (11th Cir. 2010).
A court must assess standing by making “a legal determination based on the facts
established by the record.” Church of Scientology Flag Serv. Org., Inc. v. City of
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Clearwater, 777 F.2d 598, 607 n.24 (11th Cir. 1985). The facts have played a role
in evaluating redressability in other election litigation, 1 and they could also play a
role here. Because the plaintiffs’ appeal asks us to apply “settled law to the facts or
evidence of [this] particular case,” it is “the antithesis of a proper § 1292(b) appeal.”
McFarlin, 381 F.3d at 1259.
Third, a decision about whether the plaintiffs need to sue county officials will
not cut short the case. If the answer is that the plaintiffs do not need to add these
defendants, then the case will continue as is. If the answer is that the plaintiffs must
add these defendants, the case will continue with additional defendants. We have
“little doubt that a question is not controlling” if the litigation “can readily be
accommodated to whatever ruling is made.” 16 C. Wright & A. Miller, Federal
Practice & Procedure § 3930 (3d ed. 2020).
III. CONCLUSION
Because we lack jurisdiction, the appeal is DISMISSED and the motion for
permissive appeal is DENIED. Because we must dismiss this appeal, the
defendants’ conditional cross appeal is also DISMISSED. Any other pending
motions are DENIED AS MOOT.
1
Both parties cite our recent decision in Jacobson v. Fla. Sec’y of State, 974 F.3d 1236 (11th Cir.
2020), where the Florida Secretary of State argued that she could not remedy the alleged problem
and we held that “no contrary evidence” established otherwise. Id. at 1253. See also id. at 1254
(“absence of any evidence”), 1255 (“not proved”), 1255 (“not established”), 1257 (“no contrary
evidence”).
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