South Wind Women's Center, et al. v. Stitt, et al.

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
SOUTH WIND WOMEN'S CENTER
LLC, d/b/a Trust Women Oklahoma City,
on behalf of itself, its physicians and staff,
and its patients; LARRY A. BURNS, D.O,
on behalf of himself and his staff and his
patients; COMPREHENSIVE HEALTH
OF PLANNED PARENTHOOD GREAT
PLAINS INC., on behalf of itself, its
physicians and staff, and its patients,

Plaintiffs - Appellees,

v.

J. KEVIN STITT, in his official capacity as
Governor of Oklahoma; MICHAEL
HUNTER, in his official capacity as
Attorney General of Oklahoma; DAVID
PRATER, in his official capacity as
District Attorney for Oklahoma County;
GREG MASHBURN, in his official
capacity as District Attorney for Cleveland
County; GARY COX, in his official
capacity as Oklahoma Commissioner of
Health; MARK GOWER, in his official
capacity as Director of the Oklahoma
Department of Emergency Management,

Defendants - Appellants.

------------------------------

THE AMERICAN CENTER FOR LAW
AND JUSTICE; SIXTY-TWO MEMBERS
OF THE OKLAHOMA SENATE AND
OKLAHOMA HOUSE OF
REPRESENTATIVES; STATE OF
UTAH; STATE OF ALABAMA; STATE

No. 20-6045
(D.C. No. 5:20-CV-00277-G)
(W.D. Okla.)
FILED
United States Court of Appeals
Tenth Circuit

April 13, 2020

Christopher M. Wolpert
Clerk of Court
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OF ALASKA; STATE OF ARKANSAS;
STATE OF IDAHO; STATE OF
INDIANA; STATE OF KENTUCKY;
STATE OF LOUISIANA; STATE OF
MISSISSIPPI; STATE OF MISSOURI;
STATE OF MONTANA; STATE OF
NEBRASKA; STATE OF OHIO; STATE
OF SOUTH DAKOTA; STATE OF
SOUTH CAROLINA; STATE OF
TEXAS; STATE OF TENNESSEE;
STATE OF WEST VIRGINIA; DISTRICT
OF COLUMBIA; STATE OF
CALIFORNIA; STATE OF COLORADO;
STATE OF CONNECTICUT; STATE OF
DELAWARE; STATE OF HAWAII;
STATE OF ILLINOIS; STATE OF
MAINE; STATE OF MASSACHUSETTS;
STATE OF MINNESOTA; STATE OF
NEVADA; STATE OF NEW MEXICO;
STATE OF NEW YORK; STATE OF
OREGON; STATE OF
PENNSYLVANIA; STATE OF RHODE
ISLAND; STATE OF VERMONT;
STATE OF VIRGINIA; STATE OF
WASHINGTON; ARCHDIOCESE OF
OKLAHOMA CITY; CATHOLIC
CONFERENCE OF OKLAHOMA;
OKLAHOMA BAPTISTS; OKLAHOMA
FAITH LEADERS; ROMAN CATHOLIC
DIOCESE OF TULSA

Amici Curiae.
_________________________________
ORDER AND JUDGMENT
*

*
After examining the appellate filings, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal.
See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
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_________________________________
Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
_________________________________
In connection with the current COVID-19 pandemic, the Governor of
Oklahoma issued an Executive Order (“EO”) on March 24 declaring a state of
emergency and stating that “Oklahomans and medical providers in Oklahoma shall
postpone all elective surgeries, minor medical procedures, and non-emergency dental
procedures until April 7.” Fourth Am. Exec. Order 2020-07, ¶ 18, South Wind
Women’s Ctr. LLC v. Stitt, No. 5:20-cv-00277-G (W.D. Okla. Mar. 30, 2020), ECF
No. 1-1. The EO was amended on April 1 to extend the postponement of elective
surgeries and minor medical procedures until April 30. The EO did not elaborate on
the specifics of “elective surgeries” or “minor medical procedures.” But a press
release by the Governor on March 27 stated that the postponement of elective
surgeries and minor medical procedures referenced in the EO applied to “any type of
abortion services as defined in 63 O.S. § 1-730(A)(1) [that] are not a medical
emergency as defined in 63 O.S. § 1-738.1[A] or otherwise necessary to prevent
serious health risks to the unborn child’s mother.” Mar. 27, 2020 Press Release,
“Governor Stitt Clarifies Elective Surgeries and Procedures Suspended Under
Executive Order,” South Wind Women’s Ctr., No. 5:20-cv-00277-G (W.D. Okla.
Mar. 30, 2020), ECF No. 1-2.
Plaintiffs-Appellees (“Appellees”) are three of the four providers of abortion
services in Oklahoma, and they promptly brought suit in the Western District of
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Oklahoma against the Governor and various other state officials (“Appellants”),
challenging the suspension of abortion services as unconstitutional. They filed a
Motion for Temporary Restraining Order and/or Preliminary Injunction on March 31.
The district court granted the motion for a temporary restraining order (“TRO”) in
part on April 6, ordering that: (1) “The prohibition on surgical abortions may not be
enforced with respect to any patient who will lose her right to lawfully obtain an
abortion in Oklahoma on or before the date of expiration of the Executive Order;
and” (2) “The prohibition on medication abortions may not be enforced.” Mot. to
Stay, Attach. G at 13. Appellants appealed that order on April 7 and then filed two
motions with this court—an emergency motion for stay pending appeal and a motion
to expedite the appeal. On expedited review, we dismiss the appeal for lack of
jurisdiction and deny the emergency motion for stay pending appeal as moot.
“Because the district court’s order took the form of a temporary restraining
order, we must address our own jurisdiction. Temporary restraining orders are not
ordinarily appealable, but preliminary injunctions are appealable.” Tooele Cty. v.
United States, 820 F.3d 1183, 1186 (10th Cir. 2016); see also Populist Party v.
Herschler, 746 F.2d 656, 661 n.2 (10th Cir. 1984); 16 Charles Alan Wright, Arthur
R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3922.1 (3d ed.
2014) (“The general rule is that orders granting, refusing, modifying, or dissolving
temporary restraining orders are not appealable under [28 U.S.C.] § 1292(a)(1) as
orders respecting injunctions.”); 15A Charles Alan Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice and Procedure § 3914.3 (2d ed. 1992) (“It long
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has been settled as a general matter that § 1292(a)(1) permits appeal from decisions
with respect to preliminary injunctions, but not from temporary restraining order
decisions.”).
But this court has noted two exceptions to the general rule that denial of a
TRO is not appealable under 28 U.S.C. § 1292(a)(1): (1) “when the order in reality
operates as a preliminary injunction” and (2) “when the order is appealable as a final
order under 28 U.S.C. § 1291.” Populist Party, 746 F.2d at 661 n.2 (internal
quotation marks omitted). The second exception does not apply here; this TRO is
clearly not appealable as a final order. Which leaves us to decide whether this TRO
in reality operates as a preliminary injunction and is therefore appealable within the
first exception.
For an interlocutory order to be immediately appealable under
§ 1292(a)(1), . . . a litigant must show more than that the order has the
practical effect of refusing an injunction. Because § 1292(a)(1) was
intended to carve out only a limited exception to the final-judgment rule,
we have construed the statute narrowly to ensure that appeal as of right
under § 1292(a)(1) will be available only in circumstances where an appeal
will further the statutory purpose of permitting litigants to effectually
challenge interlocutory orders of serious, perhaps irreparable, consequence.
Unless a litigant can show that an interlocutory order of the district court
might have a serious, perhaps irreparable, consequence, and that the order
can be effectually challenged only by immediate appeal, the general
congressional policy against piecemeal review will preclude interlocutory
appeal.
Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981) (citation and internal quotation
marks omitted). In United States v. State of Colorado, 937 F.2d 505, 507-08 (10th
Cir. 1991), this court relied on Carson in applying a three-part test to evaluate
whether an order refusing to approve modification of a consent decree had the
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practical effect of an injunction. To sustain appellate jurisdiction under that test, the
government must show (1) the interlocutory order has “the practical effect of denying
an injunction”; (2) “the order [has] irreparable consequences”; and (3) the order “can
be effectively challenged only by immediate appeal.” Id.
Appellants argue
1
that irreparable harm will result from the TRO and that
“even two weeks of undermining the state’s response to the pandemic would be truly
irremediable.” Mot. to Stay TRO at 1 (internal quotation marks omitted). Appellees
maintain that Appellants have not shown irreparable harm or that the only means of
effectively challenging the TRO is by immediate appeal.
To support their position that irreparable harm will result from the TRO and
that, alone, warrants treating this order as an appealable injunction, Appellants cite
Duvall v. Keating, 162 F.3d 1058, 1062 (10th Cir. 1998). Duvall was a death penalty
case in which a death row prisoner appealed the denial of a TRO that was requested
to stop an imminent execution. In that context, this court acknowledged that,
although a TRO is not generally appealable, it would exercise jurisdiction based on
an exception that applies when “an appellant will suffer irreparable harm absent
immediate review.”
2
Id. The irreparable harm in that case was the appellant’s

1
In their motion to expedite the appeal, Appellants propose that the arguments
in their stay motion and the attached exhibits stand as their opening appellate brief.
We grant the motion to expedite and therefore rely on Appellants’ stay motion and
exhibits, Appellees’ response opposing the stay motion, and Appellants’ reply in
deciding the appeal.

2
Duvall relied on an Eleventh Circuit case, Ingram v. Ault, 50 F.3d 898, 900
(11th Cir. 1995), for this exception. Ingram also involved an imminent execution.
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execution, and the threat of that harm was established with evidentiary certainty. So
it followed from the nature of the irreparable harm and its evidentiary certainty that
the TRO could not be effectively challenged absent immediate appeal; otherwise, the
appellant would have been executed. Not only is the nature of the irreparable harm
urged by Appellants quite distinguishable from the impending execution that
persuaded the Duvall court to exercise appellate jurisdiction, but it also lacks the
evidentiary certainty of the harm established in Duvall.
The TRO entered in this case is of short duration; it expires April 20, which
brings it squarely within the confines of Fed. R. Civ. P. 65(b)(2). Further, immediate
review is not the only means of effectively challenging the district court’s action
here, and Appellants’ rights will not be irretrievably lost absent immediate review.
In fact, the matter remains pending before the district court in Appellees’ request for
a preliminary injunction. And the deadlines reflected on the district court docket
give every indication that the court intends to promptly rule on the request for a
preliminary injunction. These circumstances combine to support the conclusion that
the district court’s order operates as what it purports to be—a TRO. As such, the
order is not appealable.

See id. (“Because the district court denied Ingram’s motion for a TRO, he faces
execution in less than twenty-four hours. The requirements of irreparable harm and
need for immediate appeal are therefore satisfied.”).
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We grant the motion to expedite the appeal, as well as the motion for leave to
file an amicus brief filed on April 10 by the Roman Catholic Diocese of Oklahoma, et
al. We dismiss the appeal for lack of jurisdiction, and we deny as moot the
emergency motion for stay pending appeal.
Entered for the Court
Per Curiam

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20-6045, South Wind Women’s Center v. Stitt (Lucero, J., concurring).

I am fully in agreement with the per curiam order of the court. I write
separately to concur on one point.
As noted, we must determine whether the temporary restraining order has the
practical effect of a preliminary injunction under Rule 65(a). The second factor of
the three-part test we apply is determined under United States v. Colorado, 937 F.2d
505 (10th Cir. 1991). We ask whether the district court’s order has irreparable
consequences. Id. at 507, 508. The State of Oklahoma contends that the
consequence of allowing the temporary restraining order to remain in effect pending
resolution of the request for a preliminary injunction is irreparable. Our per curiam
order mentions in passing that this claimed irreparable injury lacks “evidentiary
certainty.” Assuredly, that is correct. I would add that the district court carefully
analyzed the need for reducing abortion procedures in different scenarios, weighed
this against the harm resulting from the denial of abortion services, and tailored its
temporary relief accordingly.
Appellants advance suggested situations in which hospitals would turn away
COVID-19 patients because they need to treat women with complications resulting
from abortions, or in which abortion procedures would cause shortages in personal
protective equipment. But these hypothetical scenarios are just that—hypothetical.
Appellants’ presentation is devoid of evidence that there is a risk these scenarios
would occur if we do not exercise jurisdiction over the temporary restraining order.
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Because of that failure, I conclude that Appellants have not established that the
district court’s temporary restraining order has irreparable consequences.

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