HICKS, DISTRICT ATTORNEY OF ORANGE COUNTY, ET AL.
v.
PLEASURE HOUSE, INC., ET AL.

U.S. | 1971-10-12
No. 70-127
404 U.S. 1 Supreme Court of the United States (1971) Positive Treatment
Also reported at: 30 L. Ed. 2d 1 · 92 S. Ct. 5 · 1971 U.S. LEXIS 17 · SCDB 1971-001
Cited by 30 cases

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Holding

A direct appeal to the Supreme Court does not lie from a temporary restraining order issued by a single district judge, even in a case requiring a three-judge court.

Facts & Procedural History

Appellants sought review of a temporary restraining order issued by a single district judge in a case certified for a statutory three-judge court. The…

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Topics
Direct Appeal Jurisdiction Irreparable Damage Interlocutory Injunction Younger V. Harris Abstention Doctrine

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Per_curiam
Per Curiam.

Per Curiam.

The appellants seek review of a temporary restraining order entered by a single district judge in a case certified for presentation to a statutory three-judge court. The order, inter alia, stayed a pending prosecution of the appellees under certain state obscenity laws and temporarily restrained further enforcement of the laws against the appellees. It was entered by the District Judge shortly after he had certified a request for designation of a three-judge court to hear the appellees’ suit for permanent declaratory and injunctive relief. Under 28 U.

S. C. § 2284 (3), a single district judge has power to enter such an order in a case to be heard by a three-judge court, but the order can be entered only “to prevent irreparable damage” and can “remain in force only until the hearing and determination by the full court.”

The appellants argue that the order in this case contravenes principles set forth last Term in Younger v. Harris, 401 U. S. 37 (1971). They invoke this Court’s jurisdiction on direct appeal from “an interlocutory or permanent injunction” in any action “required ... to be heard and determined by a district court of three judges,” under 28 U. S. C. § 1253. Since, however, § 1253 does not authorize a direct appeal to this Court from a § 2284 (3) order by a single district judge, we dismiss this appeal for want of jurisdiction.

Long ago, this Court made clear that no direct appeal lies under § 1253 to the Supreme Court from a temporary restraining order issued by a single judge, even though the order may amount to an “interlocutory injunction” and may have been issued in an action required to be heard by a three-judge court. Stratton v. St. Louis S.

R. Co., 282 U. S. 10.1 See Ex parte Metropolitan Water Co., 220 U. S.

539. This is so because § 1253 “plainly contemplates such a direct appeal only in the case of an order or decree entered by a court composed of three judges in accordance with the statutory requirement.” Stratton v. St. Louis S.

R. Co., supra, at 16. See Mengelkoch v. Industrial Welfare Comm’n, 393 U. S. 83; Wilson v. City of Port Lavaca, 391 U. S. 352; Schackman v. Arnebergh, 387 U. S. 427; Buchanan v. Rhodes, 385 U. S. 3.

More recently, this Court has held that an appeal may lie to a court of appeals from certain actions of a single district judge in a case required to be heard by three judges. Mengelkoch v. Industrial Welfare Comm’n, supra; Wilson v. City of Port Lavaca, supra; Schackman v. Arnebergh, supra; Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U. S.

713. A court of appeals is not “powerless ... to give any guidance when a single judge has erroneously invaded the province of a three-judge court.” Idlewild Bon Voyage Liquor Corp. v. Epstein, supra, at 716.

Thus, if a single judge oversteps his limited authority under §2284 (3), a court of appeals may correct his error. In addition, a temporary restraining order issued pursuant to § 2284 (3) is reviewable in a court of appeals to the extent that any such order is reviewable under 28 U.

S. C. §§ 1291 and 1292 (a).

However, if no such appeal is taken before the three-judge court is convened,2 application must be made to that court for vacation or modification of the temporary restraining order pending a final determination on the merits.

The appeal is dismissed for want of jurisdiction.

In the instant case, the single judge himself determined that the action was one required to be heard by a three-judge court and then entered his temporary restraining order; in Stratton, supra, on the other hand, the single judge erroneously determined that a three-judge court was not required and then entered a similar order. This distinction between the cases, however, makes no difference in principle.

The papers before the Court in this case do not make clear whether or not the three-judge court has now been convened.

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Citator

Cited By

  • Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305 (U.S. 1985)
    …tly that temporary relief granted by a single district judge pending the convening of a three-judge court is reviewable in the first instance by the courts of appeals and not on direct appeal to this Court. See, e. g., Hicks v. Pleasure House, Inc., 404 U. S. 1, 3 (1971) (per curiam) (preliminary relief “issued pursuant to [28 U. S. C.] §2284(3) is reviewable in a court of appeals to the extent that any such order is reviewable under 28 U. S. C. §§1291 and 1292(a)”).33 It would have made no sense to channe…
  • Hamilton v. Nakai, 453 F.2d 152 (9th Cir. 1971)
    …s not an “action or proceeding required by Act of Congress to be heard and determined by a district court of three judges.” 28 U. S.C. § 2284. It follows that under the principles applied by the Supreme Court in Hicks v. Pleasure House, Inc., 1971, 404 U.S. 1, 92 S.Ct. 5, 30 L.Ed.2d 1 (1971), jurisdiction of this appeal is in this court, not the Supreme Court. V. Other contentions. A. Failure to-join the Secretary of Interior. The Navajo contend that the Hopi’s petition should fail because the Secretar…
  • McLucas v. DeCHAMPLAIN, 421 U.S. 21 (U.S. 1975)
    …when a single district judge fails to call for the convention of a three-judge court and goes on to dispose of the case, an appeal lies only to the court of appeals. Idlewild Bon Voyage Liquor Corp. v. Epstein, supra; Hicks v. Pleasure House, Inc., 404 U. S. 1, 3 (1971). Appellants here, howéver, premise this Court’s jurisdiction on 28 U. S. C. § 1252, rather than § 1253. Section 1252 provides in pertinent part: “Any party may appeal to the Supreme Court from an interlocutory or final judgment, decree o…

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