Cases

Whenever I see a motion for a TRO, Preliminary Injunction or a Stay, the opinion of the court always includes a reference to —Winter V. Natural Resources Defense Council, Inc., 172 L. Ed. 2d 249 (2008).

These are known as the “Winter Factors”. They must be addressed in order by the court before granting any of the above.

The first factor is the likelihood of success on the merits. Is the person requesting the TRO, PI or Stay going to win the case in the end? If it is more likely than not, then the first factor has been met.

The second factor is the question of the amount and type of harm being done. The key phrase is irreparable harm. In short, this means that the harm cannot be redressed by throwing money at it. All violations of Constitutionally protected rights are considered irreparable harm. You will never again have that opportunity at that moment of time with those people listening back again.

The third factor is the balance of equities. Who will be most harmed whether the motion is granted or not granted. If the motion being granted will force a business to close, while not granting it will impose an eyesore, the balance of equities’ favorers not granting the motion.

The final factor is what is in the best interest of the public. The public has no interest in enforcing unconstitutional laws. This always favors The People. The state will often argue that “keeping the public safe” is the correct scale to use for determining what is in the publics best interests.

The court did not use the Winter Factors.

And this is why she is using the Nken instead of Winter To be able to discount the likelihood of success because of the amount of harm. In other words, instead of having to prove they are likely to win on the merits, the plaintiffs have chosen to prove that they might be horribly harmed if some hypothetical comes true.

Yeah, that doesn’t make much sense to me.

IANAL. My opinion is that the first question to be resolved is if the APA law(s) passed by congress limiting the power of the President are constitutional. If they are not constitutional, then they must be vacated and there is no cause for the case.

Instead, the court assumes the APA overrides the authority granted to the President under the Constitution. She then turns the Winter standard on its head.

Even though the text reads To establish a likelihood of success on the merits, a plaintiff need not show that success is an absolute certainty. It need only make a showing that the probability of … prevailing is better than fifty percent.

The plaintiff bears the burden. Not the defendant. This judge says it is the States that bear the burden.

The gist of this is that the courts are planning to ignore the Constitutional issues as much as possible and instead base their opinions on laws that are unconstitutional.

Dellinger was fired. He went to the District Court the same day and demanded that he be reinstated, claiming the President didn’t have the authority to fire him. He did this at the end of the day on Friday. The judge in the case issued the TRO the same day.

The government appealed to the Circuit court, which kicked it back down because the case was in an interlocutory state. I.e., there wasn’t a final judgment in the case. If this status were to continue, this district court would have the ability to block the president’s authority to fire for the course of the case.

For rogue inferior courts and people like Dellinger, this is a win. All they need to do is drag out the case for as long as they can. Stopping The People’s agenda.

The TRO will expire on the 26th. The District Court will be hearing arguments for a Preliminary Injunction on the 26th. We can expect the District Court to issue their order on the 26th.

Given the activist tendencies of this judge, he is likely to grant the Preliminary Injunction.

If the Preliminary Injunction is issued, the President’s ability to fire anybody will be on hold until this case is fully resolved.

Any other challenges to being fired will be filed in DC District Court. They will all be assigned to this judge. This judge will then put them under the same PI until final judgment.

The Court has said that they will not issue an opinion until there is a Preliminary Injunction. This is still a live issue before the Supreme Court.

The two most liberal justices, Sotomayor and Jackson, would just have denied the vacatur.

Justice and Gorsuch would have issued an opinion, rather than waiting for the PI.

I won’t quote Gorsuch, but I love how his dissent is “When the plain text of the Constitution is implicated, it is the plaintiff’s burden to prove a tradition firmly based on this Nation’s historical regulations”. Gorsuch then cites numerous cases from the founding through until now which show a tradition of the courts not having the authority to reinstate fired federal employees.

When fired federal employees have sued for relief, they have been granted back pay, but never have they been reinstated.

I will quote the slap down of the rogue inferior district court:

We’ve talked about the process of litigation in a civil suit.

A complaint is filed. In the complaint, the plaintiffs state what they are challenging, why they believe the law supports them, what harm they are suffering, and what relief they seek.

The facts in this case are that on Friday, February 7, 2025, Trump “fired” Dellinger. Dellinger was “Special Counsel”. Being a legal eagle, Dellinger filed suit in federal district court to stop Trump from firing him. Before the government could even respond to the filing, the court held a hearing.

The court issued an “administrative stay” on Trump’s action. This is a made up term. A Court can issue injunctions, a TRO is a type of injunction, and they can issue judgments. They can also stay injunctions and judgments. They can’t “stay” things outside the court system.

So “administrative stay” is actually a TRO but using language to hide the fact.

The court’s order required the government to “recognize Dellinger as Special Counsel” and to let him back into the office. It also required the acting Special Counsel to be removed from the position.

That TRO ran through February 13th.

This is exactly right. The Winter factors order the courts to first look at the likelihood of success on the merits. The inferior courts are required to do so. If the district court judge and called this a “TRO” he would have had to use the Winter factors.

By using a made up term for TRO, the judge attempted to avoid the clear instructions of the Supreme Court on how to decide if an injunction should be issued.

To put this in perspective, Winter factors are to court cases what the four rules of gun safety are to gun culture. If somebody doesn’t fallow the four rules, they are at best ignorant, at worse willfully dangerous to themselves and others.

For the court to ignore Winter factors falls into the same category as pointing a loaded pistol at your junk and seeing how fast you can take up the slack in your trigger.

Katsas, the Circuit Judge writing above, says that the Winter factors were not used. The District judge did a shit job. Then went on to say that this case was not ripe to be heard. That Trump needed to wait until a TRO or a preliminary injunction was issued.

This is bogus.

Any time a Constitutional protected right or authority is delayed, irreparable harm has been done. A right delayed is a right denied.

The district judge has gone rogue.

The Trump administration was having none of this. They reached out to the Supreme Court, via their emergency docket, 24A790 to vacate the district court’s order.

So what authority did The People grant the President?

The executive Power shall be vested in a President of the United States of America. Article II, § 1, U.S. Constitution.

He is the boss of the executive branch. There doesn’t seem to be much limiting him. The limits are for Treaties, appointments of Ambassadors, public Ministers and Consuls, Supreme Court justices, and all other Officers of the United States.

Dellinger is an officer of the United States.

The Constitution does not explicitly lay out that the President can fire anybody. On the other hand, it has long been recognized that the authority to hire comes with the authority to fire.

What is the argument of Dellinger as to why SCOTUS should not vacate the order? That it would be granting an exception to the general rule that TRO’s can’t be appealed.

Amazing, the state seems to appeal any TRO that goes against them. But now TRO’s can’t be appealed?

Dellinger has not shown he has been harmed, much less irreparably harmed. It is unlikely that he will succeed on the merits of his case. Yet, he wants to let an inferior court stop the President while the case winds its way through the halls of (in)justice.

A hearing was held on Friday. I expect the judge to issue an order regarding the Preliminary Injunction on Monday.

The TRO expired on Friday, so the judge will either issue an order regarding the case. If she is going to go rogue, she will want to have that done on Monday to stop the President from doing his duty. If she wants to respect the constitution, she will issue an order denying the preliminary injunction.

In my businesses, I sometimes had a bookkeeper. She would receive the bills, make entries in the books, then bring me checks to sign to pay those bills.

I could also tell her to issue a check to somebody or some business. It was never her job to tell me not to pay that person, nor to verify if that entity was supposed to get the money. It was my job to make sure that when I told her to pay an entity, that entity should be paid, and how much.

She was supposed to tell me “no”, only if it would run afoul of the law or if we didn’t have the cash for it. If it meant we would be short later, she still did it.

The Bureau of Fiscal Service (BFS) is that bookkeeper for the Federal Government. They are tasked with making payments. They are not tasked with verifying that the payment should be made.

The decision to make a payment comes from other entities within the bureaucracy.

These payment files are checked against a list of “don’t pay”. If the recipient of the payment is on any of those lists, the payment is held. The agency that sent the payment file is responsible for determining if the payment is proper.

In the best of worlds, this would mean that no payments went to bad actors.

Now consider the case of the President issuing an Executive Order stopping payments to purple people eaters. There are dozens of agencies that send money to purple people eaters. All of those agencies are responsible for stopping payment files from going through to pay purple people eaters.

The BFS receives a payment file to send a payment to a PPE. If that PPE is not on the do not pay list, they will send the payment to that PPE. If the PPE is on a no pay list, the payment is held and the agency is informed.

If that agency sends back “pay it”, the BFS pays it. And the PPE gets money, regardless of what the President ordered.

When the bureaucracy is working with the President, every agency would have heard the “stop payments to PPEs” and would have done so. Any payment files that were already sent might be called back or stopped. If the BFS flags a payment as going to a PPE, everybody says “good job”.

If the bureaucracy is at odds with the President, they ignore the EO and do whatever the hell they want. If BFS flags any payments, they just order them paid.

If some agencies are attempting to obey the President, there can still be others that are not.

Worse, in many cases, contracts are let and budgeted. Some low level GS-2 with TDS can order a payment on a contract they control, and it just gets paid. Even if all of his bosses have told him “no”.

The President has ordered that no more payments to PPEs be made. To make this happen, he can either send people who are willing to obey him to every agency and every desk where somebody can send a payment to a PPE.

Or, he can send a few people to the BFS, and they can analyze each payment file as it comes in, check to see if it is a PPE payment.

Watching the bookkeepers doesn’t mean that the bookkeepers are doing something “wrong”, it is just the proper chock point in the flow of money.

The argument being made by these former treasury officials is that “career officials” are non-partisan and can be trusted to do the right thing.

For decades, BFS has been staffed by nonpartisan career employees led by nonpartisan career official…

There appears to be a claim without evidence that these workers are nonpartisan. At least they left off the “nonpartisan” when describing the fiscal assistant secretary, their boss.

They claim that all these nonpartisan career employees have undergone a security screening. Screening is one of those weasel words we see people use when they want the reader to think one thing when it isn’t true.

When I purchase a firearm, I fill out a 4473 and a “background check” is performed. This is a type of “security screening”. Having undergone a “thorough security screening” does not mean that this person has a clearance. If they had clearances, the brief would have said they have clearances.

This is intended to make it seem that the DOGE team’s actual clearances are not as thorough or complete as the BFS security screening. The reality is that any real clearance is likely better than the screenings these people got.

There is more, I’ll leave you with Grok’s explanation, it isn’t bad.

Not what I intended to write about. The Court has surprised me, again.

Snope and Ocean State Tactical are both distributed for the conference of 2/21/2025.

We will near nothing about these cases before then.

This puts these cases on track for arguments in the new term. Those oral arguments could be as early as October. If the cases are heard in October, we could have an opinion by December.

We didn’t lose this one, the Court took a time out.

This is the case out of New York’s Southern District, under the Second Circuit. The Second Circuit is anti-gun and anti-“The People”. The Southern District translates to New York City.

If you can find a pro-gun or pro constitution judge in the Southern District of New York, you are doing better than most people.

The Lawfare team filed a case on Friday. The case was originally assigned to judge Paul A. Engelmayer for “part 1”. This seems to mean that he is the judge handling “emergencies”.

This is the judge that would handle the cops needing a federal warrant, right now. Or requiring a TRO to stop an ongoing situation with irreparable harm. Lady has just had the shit beat out of her and wants a TRO. The abuse TRO is a state issue, not federal, but I’m trying to explain.

As far as I can tell, they waited until they knew this particular judge was on duty and for it to be Friday night. In general, nothing happens in the courts over the weekend.

This particular judge issued a TRO around 0100 on Saturday. Go find some YouTube lawyers to explain how bad this judge did. It was bad.

To put perspective on the timing of this, the TRO was entered into the docket before the complaint was.

The Trump attorneys weren’t even on the case until Sunday. That appears to have been intentional for the plaintiffs (Bad guys)

The original judge put the case on a “fast track” that had hearings taking place later this week. The judge who is sitting on the merits of the case is having nothing of it.

She ordered the parties to meet and work something out Monday morning. They did, in part. Still not enough.

The plaintiffs waited until the last minute to file their memorandum of law (A statement of the laws they think Trump is breaking and why they believe he is breaking those laws.)

The Defendant, Trump, had their replied filed by 2200.

This stuff is moving rapidly. I expect to see movement on the case by the time you are finished your second coffee.

This is a difficult post for me.

I want the Supreme Court to hear a Second Amendment case this term. I don’t think it is going to happen.

The normal procedure is for a case to get on the docket. The Court gives the party time to file briefs. Once all the briefs are filed, the case is ready for the next step.

The next step is for the Justices to discuss the case in private. This is done in Conference.

There are Wed. and Fri. Conferences. Cases that are petitioning for cert are discussed in the Friday Conferences.

We are informed when a case will be discussed by an entry in the case docket of the form “DISTRIBUTED for Conference of 1/24/2025”

During the Conference, the Justices will make decide to deny cert in a number of the cases. They will decide to grant cert in others. And some they will need more time to discuss.

In general, we hear about the results of the Conference on the following Monday. This is when the “Order List” is released.

The Order List will consist of GVRs. These are of the form “The petition for a writ of certiorari is granted. The Judgement is vacated, and the case is remanded to the COURT for consideration in light of CASE“.

There will be Orders In Pending Cases. These are motions not related to granting cert. They are motions for stays, to file under seal, to proceed in forma pauperis (in the form of a pauper.)

Then there is the “Certiorari Denied”. This is a list of case numbers and case names. That is it. No other information is supplied.

There are other sections for Mandamus Denied, Rehearings Denied, and Attorney Discipline.

Finally, there are statements of the Justices.

These are of the form, “NAME, dissenting”, Title of case, case number, and date.

Following this is the actual dissent. This can be short or long, depending on the Justice writing it and how much they have to say about the denial of certiorari.

I’ve seen them as short as a page and some extending a half dozen or more pages.

What about the cases that aren’t listed?

This is where people get to panic.

If a case is not listed in the Order List, it can be for many reasons. The Justices might be planning a “Miscellaneous Order” for later in the week. We’ve seen that from time to time.

Unfortunately, the most likely reason is that the Justices decided to deny cert.

Given Thomas’ support of the Second Amendment, if they are denying cert, he will be writing a statement dissenting with the judgement.

Conclusion

I’m torn, I don’t want these cases to be denied cert. On the other hand, I can’t think of a reason that there is nothing posted about them, except that there is a dissenting Justice writing a statement.

Last week was a week of winning with Trump 2.0.

Maybe we’ll hear really good news later this week. I’ll keep an eye out for any news and keep you updated.

We are still in a holding pattern. At this instant, the January 27th order list has been released. Neither case is on it.

This means that neither case has been summarily denied certiorari.

They were not granted certiorari, either.

Later today, the dockets should be updated.

If they are relisted, we still have a chance of a decision in the 2024 term.

If they are not relisted, it suggests that there was a denial of cert and one or more of the justices are writing a “statement” dissenting with the denial.

Perspective. A case was conferenced on the 10th, 17th, and 24th. Today they issued the denial of cert. Thomas wrote a dissent, joined by Alito.

This is the same pattern as Snope and Ocean State Tactical.

I do not believe that certiorari has been denied.

If it is granted next week, the Petitioner’s briefs will be filed by March 12, 2025. This still gets us to oral arguments for the 2024 term.

According to my brief research, We are pushing oral arguments into May at this point. The Court doesn’t often hear cases in May.

Having said this, the Court sets their own rules. If they don’t set oral arguments soon, they will likely hear the cases in early October with an opinion out December 2025 or January 2026.

As of 1100 Tuesday, we have heard that cert was NOT denied in Snope nor in Ocean State Tactical.

This means that when the dockets are updated later today, we are likely to see them Distributed for Conference of 1/24/2025.

This is as expected. NEXT Monday is when I become concerned, if the cases are relisted.

They have relisted both cases for 1/24/2025.

So far it is only Gray v. Jennings, but it is still early.