Case: 22-20459 Document: 00516863278 Page: 1 Date Filed: 08/18/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
August 18, 2023
No. 22-20459
Lyle W. Cayce
____________
Clerk
The Satanic Temple, Incorporated,
Plaintiff—Appellant,
versus
Texas Health and Human Service Commission;
Cecile Young,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:21-CV-387
______________________________
Before Smith, Higginson, and Willett, Circuit Judges.
Jerry E. Smith, Circuit Judge:
The Satanic Temple, which describes itself as a “nontheistic religion
whose membership openly defies the authority of God and the Church,” and
an anonymous member thereof sued the Texas Health and Human Services
Commission (“THHSC”), its Executive Commissioner (currently Cecile
Young), and the Planned Parenthood Center for Choice, Inc., seeking injunc-
tive and declaratory relief against several Texas abortion laws. 1
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1
After successive amended complaints, only Cecile Young remains as a defendant,
Case: 22-20459 Document: 00516863278 Page: 2 Date Filed: 08/18/2023
No. 22-20459
Plaintiffs moved for a temporary restraining order (“TRO”) and a
preliminary injunction against Young; the district court denied the motion.
The Satanic Temple (but not its anonymous member) appealed.
While the appeal was pending, the litigation continued apace in dis-
trict court. Defendants 2 moved to dismiss for lack of jurisdiction 3 and for
failure to state a claim. 4 The district court granted the motion and dismissed
the suit without prejudice but without leave to replead.
To settle any doubt: The district court had jurisdiction to proceed on
the merits of the case. An appeal from a grant or denial of a preliminary
injunction does not inherently divest the district court of jurisdiction or
otherwise restrain it from taking other steps in the litigation. 5 The district
court therefore had the power to dismiss plaintiffs’ claims despite the pen-
dent appeal.
But given the dismissal, we also must assure ourselves of jurisdiction. 6
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sued in her official capacity.
2
THHSC apparently (and mistakenly) thought it was still a party to the suit.
3
See Fed. R. Civ. P. 12(b)(1).
4
See id. 12(b)(6).
5
Ry. Lab. Execs.’ Ass’n v. City of Galveston ex rel. The Bd. of Trs. of the Galveston
Wharves, 898 F.2d 481, 481 (5th Cir. 1990); 11A Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 2962, Westlaw (database
updated Apr. 2023) (“An appeal from the grant or denial of a preliminary injunction does
not divest the trial court of jurisdiction or prevent it from taking other steps in the litigation
while the appeal is pending. . . . The only restriction on the trial court’s power occurs if the
appellate court enters an order staying the lower court until the appeal has been
completed.”).
6
Elldakli v. Garland, 64 F.4th 666, 670 (5th Cir. 2023) (“This court has a contin-
uing obligation to assure itself of its own jurisdiction, sua sponte if necessary.” (quoting
Green Valley Special Util. Dist. v. City of Schertz, 969 F.3d 460, 468 (5th Cir. 2020)
(en banc))).
2
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No. 22-20459
The courts of appeals have jurisdiction over appeals from certain interlocu-
tory orders, including orders refusing injunctions. 7 Such jurisdiction, how-
ever, may be lost, as here. 8 “A denial of permanent relief moots the appeal
from a denial of preliminary relief.” 9 That proposition is consistent with the
function of preliminary relief, which is “to preserve the status quo during the
pendency of trial court proceedings”—a function that loses vitality when
there are no longer trial court proceedings. 10
Plaintiffs have some recourse, however. “When a district court enters
a final judgment in a case, interlocutory orders rendered in the case typically
merge with the judgment for purposes of appellate review.” 11 Plaintiffs have
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7
28 U.S.C. § 1291(a)(1). Although we now lack jurisdiction over the entire appeal,
we were always unable to review the denial of the TRO. Interlocutory orders “granting,
continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify
injunctions” are immediately appealable. Id. But TROs are not injunctions for § 1292 pur-
poses and are therefore not subject to review on interlocutory appeal. Jones v. Tex. Dep’t
of Crim. Just., 880 F.3d 756, 758 n.1 (5th Cir. 2018) (per curiam) (citing Faulder v. Johnson,
178 F.3d 741, 742 (5th Cir. 1999)); see also In re Lieb, 915 F.2d 180, 183 (5th Cir. 1990)
(collecting intra-circuit and out-of-circuit cases and explaining that concerns about moot-
ness are the likely basis for the rule prohibiting appeals of TRO decisions); see also
11A Wright & Miller, supra note 5, § 2962 (“[I]t generally has been held that tem-
porary restraining orders are not [appealable].”). The denial of plaintiffs’ motion for a
TRO was therefore not appealable ab initio.
8
Koppula v. Jaddou, 72 F.4th 83, 84 (5th Cir. 2023).
9
Id.
10
Id. There are rare exceptions, such as when a preliminary injunction issues and
affects independent and separate rights from any relief provided by a particular final judg-
ment. See, e.g., Stacey G. ex rel. William & Jane G. v. Pasadena Indep. Sch. Dist., 695 F.2d
949, 955 (5th Cir. 1983) (holding that an appeal of a preliminary injunction was not moot
because “the final judgment did not in terms resolve the issue” raised on appeal, i.e.,
“whether preliminary injunctive relief was appropriate to require [the defendant] to pay
the entire interim costs of [the plaintiff’s] private schooling prior to the final judgment”).
This case presents no such exception.
11
Shannon v. Gen. Elec. Co., 186 F.3d 186, 192 (2d Cir. 1999) (collecting authori-
ties); Capriole v. Uber Techs., Inc., 991 F.3d 339, 343 (1st Cir. 2021) (“[U]pon entry of the
3
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No. 22-20459
already appealed the dismissal of their claims; that appeal is docketed as
No. 23-20329. To the extent that plaintiffs want to litigate further any issues
that were raised in the preliminary injunction motion and remain live, they
may do so in their appeal from the district court’s final judgment. 12
This appeal is DISMISSED for want of jurisdiction.
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judgment of dismissal of [the] suit, the denial . . . of the first preliminary injunction
merge[s] with the . . . final judgment.”).
12
See Scheff v. Banks, No. 22-2439-CV, 2023 WL 4715174, at *2–3 (2d Cir. July 25,
2023) (summary order); see also 15A Wright & Miller, supra note 5, § 3905.1 (“[T]he
general rule [is] that an appeal from final judgment opens the record and permits review of
all rulings that led up to the judgment.”); 11A id. § 2962 (“Upon an appeal from the final
decree every interlocutory order affecting the rights of the parties is subject to review in the
appellate court.”).
4